.P 1
COMMENTARIES
ON THE
LAWS OF ENGLAND.

BOOK THE THIRD.
OF PRIVATE WRONGS.

CHAPTER THE FIRST.
OF THE REDRESS OF PRIVATE WRONGS
BY THE MERE ACT OF THE PARTIES.

AT the opening of thefe commentaires^a municipal law was in general defined to be, “a rule of civil conduct, prefcribed by the fupreme power in a ftate, “commanding what is right, and prohibiting what “is wrong^b .” From hence therefore it followed, that the primary objects of the law are the eftablifhment of rights, and the prohibition of wrongs. And this occafioned^c the diftribution of thefe collections into two general heads; under the former of which we have already confidered the rights that were defined and eftablifhed, and under the latter are now to confider the wrongs that are forbidden and redreffed, by the laws of England.

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^a Introd. §. 2.
^b Sanctio jufta, jubeans honefta, et prohibens coutratia. Cic. 11 Philipp. 12, Bract. l. I. c. 3.
^c Book I. ch. 1.

VOL. III.

A

IN

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IN the profectution of the firft of thefe enquiries, we diftinguifhed rights into two forts: firft, fuch as concern or are annexed to the perfons of men, and are then called jura perfonarum, or the rights of perfons; which, together with the means of acquiring and lofing them, compofed the firft book of thefe commentaries: and, fecondly, fuch as a man may acquire over external objects, or things unconnected with his perfon, which are called jura rerum, or the rights of things; and thefe, with the means of transferring them from man to man, were the fubject of the fecond book. I am now therefore to proceed to the confideration of wrongs; which for the moft part convey to us an idea merely negative, as being nothing elfe but a privation of right. For which reafon it was neceffary, that, before we entered at all into the difcuffion of wrongs, we fhould entertain a clear and diftinct notion of rights: the contemplation of what is jus being neceffarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.

WRONGS are divifible into two forts or fpecies; private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, confidered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, confidered as a community; and are diftinguifhed by the harfher appellation of crimes and mifdemefnors. To inveftigate the firft of thefe fpecies of wrongs, with their legal remedies, will be our employment in the prefent book; and the other fpecies will be referved till the next or concluding volume.

THE more effectually to accomplifh the redrefs of private injuries, courts of juftice are inftituted in every civilized fociety, in order to protect the weak from the infults of the ftronger, by expounding and enforcing thofe laws, by which rights are defined, and wrongs prohibited. This remedy is therefore princi-
pally
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pally to be fought by application to thefe courts of juftice; that is, by civil fuit or action. for which reafon our chief employment in this volume will be to confider the redrefs of private wrongs, by fuit or action in courts. But as fome injuries are of fuch a nature, that they furnifh or require a more fpeedy remedy, than can be had in the ordinary forms of juftice, there is allowedin thofe cafes an extrajudicial or eccentrical kind of remedy; of which I fhall firft of all treat, before I confider the feveral remedies by fuit: and, to that end, fhall diftribute the redrefs of private wrongs into three feveral fpecies; firft, that which is obtained by the mere act of the parties themfelves; fecondly, that which is effected by the mere act and operation of law; and, thirdly, that which arifes from fuit or action in courts; which confifts in a conjunction of the other two, the act of the parties co-operating with the act of law.

AND, firft, of that redrefs of private injuries, which is obtained by the mere act of the parties. This is of two forts; firft, that which arifes from the act of the injured party only; and, fecondly, that which arifes from the joint act of all the parties together: both which I fhall confider in their order.

OF the firft fort, or that which arifes from the fole act of the injured party, is,

I. THE defence of one's felf, or the mutual and reciprocal defence of fuch as ftand in the relations of hufband and wife, parent and child, mafter and fervant. In thefe cafes, if the party himfelf, or any of thefe his relations, be forcibly attacked in his perfon or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray^d . For the law, in this cafe, refpects the paffioins of the human mind; and (when external violence is offered to a man himfelf, or thofe to whom he bears a near connection) makes it lawful in him to do himfelf that im-

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^b 2 Roll. Abr. 546. 1 Hawk. P. C. c. 131.
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A 2

mediate

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mediate juftice, to which he is prompted by nature, and which no prudential motives are ftrong enough to reftrain. It confiders that the future procefs of law is by no means an adequate remedy for injuries accompanied with force; fince it is impoffible to fay, to what wanton lenghs of reapine or cruelty outrages of this fort might be carried, unlefs it were permitted a man immediately to oppofe one violence with another. Self-defence therefore as it is juftly called the primary law of nature, fo it is not, neither can it be in fact, taken away be the law of fociety. In the Englifh law particularly it is held an excufe for breaches of the peace, nay even for homicide itfelf: but care muft be taken that the refiftance does not exceed the bounds of mere defence and prevention; for then the defender would himflef become an aggreffor.

II. RECAPTION or reprifal is another fpecies of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels perfonal, or wrongfully detains one's wife, child, or fervant; in which cafe the owner of the goods, and the hufband, parent, or mafter, may lawfully claim and retake them, wherever he happens of find them; fo ti be not in a riotous manner, or attended with a breach of the peace^c . The reafon for this is obvious; fince it may frequently happen that the owner may have this only opportunity of doing himfelf juftice: his goods may be afterwards conveyed away or deftroyed; and his wife, if he had no fpeedier remedy than the ordinary procefs of law. If therefore he can fo contrive it as to gain poffeffion of his property again, without force or terror, the law favours and will juftify his proceeding. But, as the public peace is a fuperior confideration to any one man's private property; and as, if individual were once allowed to ufe private force as a remedy for private injuries, all focial juftice muft ceafe, the ftrong would give law to the weak, and every man would revert to a ftate of nature; for thefe reafons

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^c 3 Inft. 134. Hal. Anal. §. 46.
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it
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it is provided, that this natural right of recaption fhall never be exerted, where fuch exertion muft occafion ftrife and bodily contention, or endanger the peace of fociety. If, for inftance, my horfe is taken away, and I find him in a common, a fair, or a public inn, I may lawfully feife him to my own ufe: but I cannot juftify breaking open a private ftable, or entering on the grounds of a third perfon, to take him, except he be felonioufly ftolen^f ; but muft have recourfe to an action at law.

III. AS recaption is a remedy given to the party himfelf, for an injury to his perfonal property, fo, thirdly, a remedy of the fame kind for injuries to real property is by entry on lands and tenements, when another perfon without any right has taken poffeffion thereof. This depends in fome meafure on like reafons with the former; and, like that too, muft be peaceable and without force. There is fome nicety required to define and diftinguifh the cafes, in which fuch entry is lawful or otherwife: it will therefore be more fully confidered in a fubfequent chapter; being only mentioned in this place for the fake of regularity and order.

IV. A FOURTH fpecies of remedy by the mere act of the party injured, is the abatement, or removal, of nufances. What nufances are, and their feveral fpecies, we fhall find a more proper place to enquire under fome of the fubfequent divifions. At prefent I fhall only obferve, that whatfoever unlawfully annoys or doth damage to another is a nufance; and fuch nufance may be abated, that is, taken away or removed, by the party aggrieved thereby, fo as he commits no riot in the doing of it^g. If a houfe or wall is erected fo near to mine that it ftops my antient lights which is a private nufance, I may enter my neighbour's land, and peaceably pull it down^h . Or if a new gate be erected acrofs the public highway, which is a common nufance, any of the king's fubjects paffing that way may cut it down, and deftroy it^.i. And

.{FS}
^f 2 Roll. Rep. 55, 56. 208. 2 Roll Abr. 565, 566.
^g 5 Rep. 101. 9 Rep. 55.
^h Salk. 459.
^j Cro. Car. 184.
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the
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the reafon why the law allows this private and fummary method of doing one's felf juftice, is becaufe injuries of this kind, which obftruct or annoy fuch things as are of daily convenience and ufe, repuire an immediate remedy; and canno wait for the flow progrefs of the ordinary forms of juftice.

V. A FIFTH cafe, in which the law allows a man to be his own avenger, or to minifter redrefs to himfelf, is that of diftreining cattle or goods for nonpayment of rent, or other duties; or, diftreining another's cattle damage-feafant, that is, doing damage, or trefpaffing, upon his land. The former intended for the benefit of landlords, to prevent tenants from fecreting or withdrawing their effects to his prejudice; the latter arifing from the neceffity of the thing itfelf, as it might otherwife be impoffible at a future time to afcertain, whofe cattle they were that committed the trefpafs or damage.

AS the law of diftreffes is a point of great ufe and confequence, I fhall confider it with fome minutenefs, by enquiring, firft, for what injuries a diftrefs may be taken; fecondly, what things may be diftreined; and, thirdly, the manner of taking, difpofing of, and avoiding diftreffes.

1. AND, firft, it is neceffary to premife, that a diftrefsⁱ , diftrictio, is the taking of a perfonal chattel out of the poffeffion of the wrongdoer into the cuftody of the party injured, to procure a fatisfaction for the wrong committed. 1. The moft ufual injury, for which a diftrefs may be taken is that of nonpayment of rent. It was obferved in a former volume^k that diftreffes were incident by the common law to every rent-fervice, and by particular refervation to rent-charges alfo; but not to rent-feck, till the ftatute 4 Geo. II. c. 28. extended the fame remedy to all rents alide, and thereby in effect abolifhed all material diftinction between them. So that now we may lay it down as an univerfal

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ⁱ The thing itfelf taken by this procefs as well as the procefs itfelf, is in our law-books very frequently called a diftrefs.
^k Book II. ch. 3.
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principle
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principle, that a diftrefs may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do fuit to the lord's court^l , or other certain perfonal fervice^m , the lord may diftrein, of common right. 3. For amercements in a court-leet a diftrefs may be had of common right, but not for amercements in a court-baron, without a fpecial prefcription to warrant itⁿ . 4. Another injury, for which diftreffes may be taken, is where a man finds beafts of a ftranger wandering in his grounds damage-feafant; that is, doing him hurt or damage, by treading down his grafs, or the like; in which cafe the owner of the foil may diftrein them, till fatisfaction be made him for the injury he has thereby fuftained. 5. Laftly, for feveral duties and penalties inflicted by fpecial acts of parliament, (as for affeffments made by commiffioners of fewers^o,, or for the relief of the poor^p ) remedy by diftrefs and fale is given; for the particulars of which we muft have recourfe to the ftatutes themfelves: remarking only, that fuch diftreffes^q are partly analogous to the antient diftrefs at common law, as being repleviable and the like; but more refembling the common law procefs of execution, by feifing and felling the goods of the debtor under a writ of fieri facias, of which hereafter.

2. SECONDLY; as to the things which may be diftreined, or taken in diftrefs, we may lay it down as a general rule, that all chattels perfonal are liable to be diftreined, unlefs particularly protected or exempted. Inftead therefore of mentioning what things are diftreinable, it will be eafier to recount thofe which are not fo, with the reafon of their particular exemptions^r . And, 1. As every thing which is diftreined is prefumed to be the property of the wrongdoer, it will follow that fuch things, wherein no man can have an abfolute and valuable property (as dogs, cats,

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^l Bro. Abr. tit. difrefs. 15.
^m Co. Litt. 46.
ⁿ Brownl. 36.
^o Stat. 7 Ann. c. 10.
^p Stat. 43 Eliz. c. 2.
^q 4 Burr. 589.
^r Co. Litt. 47.
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rabbets
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rabbets, and all animals ferae naturae) cannot be diftreined. Yet if deer (which are ferae naturae) are kept in a private inclofure for the purpofe of fale or profit, this fo far changes their nature by reducing them to a kind of ftock or merchandize, that they may be diftreined for rent^s . 2. Whatever is in the perfonal ufe or occupation of any man, is for the time privileged and protected from any diftrefs; as an ax with which a man is cutting wood, or a horfe while a man is riding him. But horfes, drawing a cart, may (cart and all) be diftreined for rent-arrere; and alfo if a horfe, though a man be riding him, be taken damage-feafant, or trefpaffing in anothers grounds, the horfe notwithftanding his rider may be diftreined and led away to the pound^t. 3. Valuabe things in the way of trade fhall not be liable to diftrefs. As a horfe ftanding in a fmith's fhop to be fhoed, or in a common inn; or cloth at a taylor's houfe; or corn fent to a mill, or a market. For all thefe are protected and privileged for the benefit of trade; and are fuppofed in common prefumption not to belong to the tenant or a ftranger, are diftreinable by him for rent: for otherwife a door would be opened to infinite frauds upon the landlord; and the ftranger has his remedy over by action on the cafe againft the tenant, if by the tenant's default the chattels are diftriened, fo that he cannot render them when called upon. With regard to a ftranger's beafts which are found on the tenant's land, the following diftinctions are however taken; It they are put in by confent of the owner of the beafts, they are diftreinable immediately afterwards for rent-arrere by the landlord^v . So alfo if the ftranger's cattle break the fences, and commit a trefpafs by coming on the land, they are diftreinable immediately by the leffor for his tenant's rent, as a punifhment to the owner of the beafts for the wrong committed through his negligence^U. But if the lands were not fufficiently fenced fo as

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^S Davis v. Powel. C. B. Hil. 11 Geo. II.
^T 1 Sid. 440.
^V Cro. Eliz. 549.
^U Co. Litt. 47.
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to keep out cattle, the landlord cannot diftrein them, till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have laid down and rofe up to feed; which in general is held to be one night at leaft: and then the law prefumes, that the owner may have notice, whither his cattle have ftrayed, and it is his own negligence not to have taken them away. Yet, if the leffor or his tenant were bound to repair the fences and did not, and thereby the cattle efcaped into their grounds without the negligence or default of the owner; in this cafe, though the cattle may have been levant and couchant, yet they are not diftreinable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them^w : for the law will not fuffer the landlord to take advantage of his own or his tenant's wrong. 4. There are alfo other things privileged by the antient common law; as a man's tools and utenfils of his trade, the ax of a carpenter, the books of a fcholar, and the like: which are faid to be privileged for the fake of the public, becaufe the taking them away would difable the owner from ferving the commonwealth in his ftation. So, beafts of the plough, averia carucae, and fheep, are privileged from diftreffes at common law^x ; while goods or other fort of beats, which Bracton calls catalla otiofa, may be diftreined. But, as beafts of the plough may be taken in execution for debt, fo they may be for diftreffes by ftatute, which partake of the nature of executions^y . And perhaps the true reafon, why thefe and the tools of a man's trade were privileged at the common law, was becaufe the diftrefs was then merely intended to compel the payment of the rent, and not as a fatisfaction for it's nonpayment: and therefore, to deprive the party of the inftruments and means of paying it, would counteract the very end of the diftrefs^z . 5. Nothing fhall be diftreined for rent, which may not be rendered again in as good plight as when it was diftreined: for which reafon milk, fruit, and the like, cannot be diftreined; a diftrefs

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^w Lutw. 1580.
^x Stat. 51 Hen. III. ft. 4. de diftrictiont fcaccarh.
^y 4 Burr 589.
^z Ibid. 588.
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at

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at common law being only in the nature of a pledge or fecurity, to be reftored in the fame plight when the debt is paid. So, antiently, fheaves or fhocks of corn could not be diftreined, becaufe fome damage muft needs accrue in their removal: but a cart loaded with corn might; as that could be fafely reftored. But now by ftatute 2 W. & M. c. 5. corn in fheaves or cocks, or loofe in the ftraw, or hay in barns or ricks, or otherwife, may be diftreined as well as other chattels. 6. Laftly, things fixed to the freehold may not be diftreined; as caldrons, windows, doors, and chimneypieces: for they favour of the realty. For this reafon alfo corn growing could not be diftreined; till the ftatute 11 Geo. II. c. 19. empowered landlords to diftrein corn, grafs or other products of the earth, and to cut and gather them when ripe.

LET us next confider, thirdly, how diftreffes may be taken, difpofed of, or avoided. And, firft, I muft premife, that the law of diftreffes is greatly altered within a few years laft paft. Formerly they were looked upon in no other light than as a mere pledge or fecurity, for payment of rent or other duties, or fatiffaction for damage done. And fo the law ftill continues with regard to diftreffes of beafts taken damage-feafant, and for other caufes, not altered by act of parliament; over which the diftreinor has no other power than to retain them till fatisfsction is made. But diftreffes for rent-arrere being found by the legiflature to be the fhorteft and moft effectual method of compelling the payment of fuch rent, many beneficial laws for this purpofe have been made in the prefent century; which have much altered the common law, as laid down in our antient writers.

IN pointing out therefore the methods of diftreining, I fhall in general fuppofe the diftrefs to be made for rent; and remark, where neceffary, the differences between fuch diftrefs, and one taken for other caufes.
IN
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IN the firft place then, all diftreffes muft be made by day, unlefs in the cafe of damage-feafant; an exception being there allowed, left the beafts fhould efcape before they are taken^a . And, when a perfon intends to make a diftrefs, he muft, by himfelf or his bailiff, enter on the demifed premifes; formerly during the continuance of the leafe, but now^b he may diftrein within fix months after the determination of fuch leafe whereon rent is due. If the leffor does not find fufficient diftrefs on the premifes, formerly he could refort no where elfe; and therefore tenants, who were knavifh, made a practice to convey away their goods and ftock fraudulently from the houfe or lands demifed, in order to cheat their landlords. But now^c the landlord may diftrein any goods of his tenant, carried off the premifes clandeftinely, wherever he finds them within thirty days after, unlefs they ahve been bona fide fold for a valuable confideration: and all perfons privy to, or affifting in, fuch fraudulent conveyance, forfeit double the value to the landlord. The landlord may alfo diftrein the beafts of his tenant, feeding upon any commons or waftes, appendant or appurtenant to the demifed premifes. The landlord might not formerly break open a houfe, to make a diftrefs, for that is a breach of the peace. But when he was in the houfe, it was held that he might break open an inner door^d : and now^e he may, by the affiftance of the peace officer of the parifh, break open in the day time any place, locked up to prevent a diftrefs; oath being firft made, in cafe it be a dwelling-houfe, of a reafonable ground to fufpect that goods are concealed therein.

WHERE a man is intitled to diftrein for an intire duty, he ought to diftrein for the whole at once; and not for part at one time, and part at another^f . But if he diftreins for the whole, and there is not fufficient on the premifes, or he happens to miftake in the value of the thing diftreined, and fo takes an infuf

.{FS}
^a Co. Litt. 142.
^b Stat. 8 Ann. c. 14.
^c Stat. 8 Ann. c. 14. 11 Geo. II. c. 19.
^d Co. Litt. 161. Comberb. 17.
^e Stat. 11 Geo. II. c. 19.
^f 2 Lutw. 1532.
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ficient diftrefs, he may take a fecond diftrefs to complete his remedy^g .

DISTRESSES muft be proportioned to the thing diftreined for. By the ftatute of Marlbridge, 52 Hen. III. c. 4. if any man takes a great or unreafonable diftrefs, for rent-arrere, he fhall be heavily amerced for the fame. As if^h the landlord diftreins two oxen for twelvepence rent; the taking of both is an unreafonable diftrefs; but, if there were no other diftrefs nearer the value to be found, he might reafonably have diftreined one of them. But for homage, fealty, or fuit, as alfo for parliamentary wages, it is faid that no diftrefs can be exceffive^j . For as thefe diftreffes cannot be fold, the owner, upon making fatisfaction, may have his chattels again. The remedy for exceffive diftreffes is by a fpecial action on the ftatute of Marlbridge; for an action of trefpafs is not maintainable upon this account, it being no injury at the common lawⁱ .

WHEN the diftrefs is thus taken, the next confideration is the difpofal of it. For which purpofe the things diftreined muft in the firft place be carried to fome pound, and there impounded by the taker. But, in their way thither, they may be refcued by the owner, in cafe the diftrefs was taken without caufe, or contrary to law: as if no rent be due; if they were taken upon the highway, or the like; in thefe cafes the tenant may lawfully make refcue^k . But if they be once impounded, even though taken without any caufe, the owner may not break the pound and take them out; for they are then in the cuftody of the law^l .

A POUND (parcus, which fignifies any inclofure) is either pound-overt, that is, open overhead; or pound-covert, that is, clofe. By the ftatute 1 & 2 P. & M. c. 12. no diftrefs of cattle can be driven out of the hundred where it is taken, unlefs to a

.{FS}
^g Cro. Eliz. 13. Stat. 17. Car. II. c. 7. 4 Burr. 590.
^h 2 Inft. 107.
^j Bro. Abr. 5. affife. 291. prerogative. 98.
ⁱ 1 Ventr. 104. Fitzgibb. 85. 4 Burr. 590.
^k Co. Litt. 160, 161.
^l Ibid. 47.
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pound-overt within the fame fhire; and within 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 diftrefs. And by ftatute 11 Geo. II. c. 19. which was made for the benefit of landlords, any perfon diftreining for rent may turn any part of the premifes, upon which a diftrefs is taken, into a pound pro hac vice, for fecuring of fuch diftrefs. If a live diftrefs, of animals, be impounded in a common pound-overt, the owner muft take notice of it at his peril; but if in any fpecial pount-overt, fo conftituted for this particular purpofe, the diftreinor muft give notice to the owner: and, in both thefe cafes, the owner, and not the diftreinor, is bound to provide the beafts with food and neceffaries. But if they be put in a pound-covert, as in a ftable or the like, the landlord or diftreinor muft feed and fuftain them^m . A diftrefs of houfehold-goods, or other dead chattels, which are liable to be ftolen or damaged by weather, ought to be impounded in a pound-covert, elfe the diftreinor muft anfwer for the confequences.

WHEN impounded, the goods were formerly, as was before obferved, only in the nature of fatisfaction; and upon this account it hath been heldⁿ , that the diftreinor is not at liberty to work or ufe a diftreined beaft. And thus the law ftill continues with regard to beafts taken damage-feafant, and diftreffes for fuit or fervices; which muft remain impounded, till the owner makes fatisfaction, or contefts the right of diftreining, by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) is, when a perfon diftreined upon applies to the fheriff or his officers, and has the diftrefs returned into his own poffeffion; upon giving good fecurity to try the right of taking it in a fuit at law, and if that be determined againft him, to return the cattle or goods once more into the hands of the diftreinor. This is called a replevin, or which more will be faid hereafter. At prefent I fhall only obferve, that, as a diftrefs is at common law only in nature

.{FS}
^m Co. Litt. 47.
ⁿ Cro. Jac. 148.
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of a fecurity for the rent or damages done, a replevin anfwers the fame end to the diftreinor as the diftrefs itfelf; fince the party replevying gives fecurity to return the diftrefsl, if the right be determined againft him.

THIS kind of diftrefs, though it puts the owner to inconvenience, and is therefore a punifhment to him, yet, if he continues obftinate and will make no fatisfaction or payment, it is no remedy at all to the diftreinor. But for a debt due to the crown, unlefs paid within forty days, the diftrefs was always faleable at the common law^o . And for an amercement impofed at a court-leet, the lord may alfo fell the diftrefs^p : partly becaufe, being the king's court of record, it's procefs partakes of the royal prerogative^q ; but principally becaufe it is in the nature of an execution to levy a legal debt. And, fo in the feveral ftatute-diftreffes, before-mentioned, which are alfo in the nature of executions, the power of fale is likewife ufually given, to effectuate and complete the remedy. And, in like manner, by feveral acts of parliament^r , in all cafes of diftrefs for rent, if the tenant or owner do not, within five days after the diftrefs is taken, and notice of the caufe thereof given him, replevy the fame with fufficient fecurity; the diftreinor, with the fheriff or conftable, fhall caufe the fame to be appraifed by two fwronn appraifers, and fell the fame towards fatisfaction of the rent and charges; rendering the overplus, if any, to the owner himfelf. And, by this means, a full and intire fatisfaction may now be had for rent in arrerre, by the mere act of the party himfelf, viz. by diftrefs, the remedy given at common law; and fale confequent thereon, which is added by act of parliament.

BEFORE I quit this article, I muft obferve, that the many particulars which attend the taking of a diftrefs, ufed formerly to make it a hazardous kind of proceeding: for, if any one ir-

.{FS}
^o Bro. Abr. t. diftrefs. 71.
^p 8 Rep. 41.
^q Bro. Ibid. 12 Mod. 330.
^r 2 W. & M. c. 5. 8 Ann. c. 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19.
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regularity
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regularity was committed, it vitiated the whole, and made the diftreinors trefpaffors ab initio^s . But now by the ftatute 11 Geo. II. c. 19. it is provided, that, for any unlawful act done, the whole fhall not be unlawful, or the parties trefpaffors ab initio; but that the party grieved fhall only have an action for the real damage fuftained; and not even that, if tender of amends is made before any action is brought.

VI. THE feizing of heriots, when due on the death of a tenant, is alfo another fpecies of felf-remedy; not much unlike that of taking cattle or goods in diftrefs. As for that divifion of heriots, which is called heriot-fervice, and is only a fpecies of rent, the lord may diftrein for this, as well as feize: but for heriot-cuftom (which fir Edward Coke fays^t , lies only in prender, and not in render) the lords may feize the indentical thing itfelf, but cannot diftrein any other chattel for it^u . The like fpeedy and effectual remedy, of feizing, is given with regard to many things that are faid to lie in francife; as waifs, wrecks, eftrays, deodands, and the like; all which the perfon entitled thereto may feize, without the formal procefs of a fuit or action. Not that they are debarred of this remedy by action; but have alfo the other, and more fpeedy one, for the better afferting their property; the thing to be claimed being frequently of fuch a nature, as might be out of the reach of the law before any action could be brought.

THESE are the feveral fpecies of remedies, which may be had by the mere act of the party injured. I fhall, next, briefly mention fuch as arife from the joint act of all the parties together. And thefe are only two, accord, and arbitration.

I. ACCORD is a fatisfaction agreed upon between the party injuring and the party injured; which, when performed, is a

.{FS}
^s 1 Ventr. 37.
^t Cop. §. 25.
^u Cro. Eliz. 590. Cro. car. 260.
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bar
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bar of all actions upon this account. As if a man contract to build a houfe or deliver a horfe, and fail in it; this is an injury, for which the fufferer may have his remedy by action; but if the party injured accepts a fum of money, or other thing, as a fatisfaction, this is a redrefs of that injury, and entirely takes away the action^w . By feveral late ftatutes, particularly 11 Geo. II. c. 19. in cafe of irregularity in the method of diftreining; and 24 Geo. II. c. 24. in cafe of miftakes committed by juftices of the peace; even tender of fufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept fuch amends or no.

II. ARBITRATION is where the parties, injuring and injured, fubmit all matters in difpute, concerning any perfonal chattels or perfonal wrong, to the judgment of two or more arbitrators; who are to decide the controverfy: and if they do not agree, it is ufual to add, that another perfon be called in as umpire, (imperator) to whofe fole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decifion, in any of thefe cafes, is called an award. And thereby the queftion is as fully determined, and the right transferred or fettled, as it could have been by the agreement of the parties or the judgment of a court of juftice^x . But the right of real property cannot thus pafs by a mere award^y : which fubtilty in point of form (for it is now reduced to nothing elfe) had it's rife from feodal principles; for, if this had been permitted, the land might have been aliened collufively without the confent of the fuperior. Yet doubtlefs an arbitrator may now award a conveyance or a releafe of lands; and it will be a breach of the arbitration-bond to refufe compliance. For, though originally the fubmiffion to arbitration ufed to be by word, or by deed, yet both of thefe being revocable in their nature, it is now become the practice to enter into mutual bonds, with condition to ftand to the award or arbitration of the arbitrators or umpire therein

.{FS}
^w 9 Rep. 79.
^x Brownl. 55. 1 Freem. 410.
^y 1 Roll. Abr. 242. Lord Raym. 115.
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named^z
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named^x . And experience having fhewn the great ufe of thefe peaceable and domeftic tribunals, efpecially in fettling matters of acocunt, and other mercantile tranfactions, which are difficult and almoft impoffible to be adjufted on a trial at law; the legiflature has now eftablifhed the ufe of them, as well in controverfies where caufes are depending, as in thofe where no action is brought, and which ftill depend upon the rules of the common law: enacting, by ftatute 9 & 10 W. III. c. 15. that all merchants and others, who defire to end any controverfy, (for which there is no other remedy but by perfonal action or fuit in equity) may agree, that their fubmiffion of the fuit to arbitration or umpirage fhall be made a rule of any of the king's courts of record: and, after fuch rule made, the parties difobeying the award fhall be liable to be punifhed, as for a contempt of the court; unlefs fuch award fhall be fet afide, for corruption or other mifbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made. And, in confequence of this ftatute, it is now become a confiderable part of the bufinefs of the fuperior courts, to fet afide fuch awards when partially or illegally made; or to enforce their execution, when legal, by the fame procefs of contempt, as is awarded for difobedience to fuch rules and orders as are iffued by the courts themfelves.

.{FS}
^z Appned. N^o . III. §. 6.
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