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PART IV. one or some of them, as may be necessary, to defray the cost of their food. (5 & 6 Will. IV. c. 59; 12 & 13 Vic. c. 92; 17 & 18 Vic. c. 60.)
(5) Seizing of heriots and
A commoner may distrain the beasts of a stranger; because there is no colour of right. But he cannot distrain the beasts of another commoner; because there is a colour of right. If, however, one commoner puts more cattle on the common than he ought, he is liable to an action by one or more of the other commoners. (Add. Torts, 62; Gilbert, 21.)
(5) The seizing of heriots, when due on things lying the death of a tenant, and of certain things said to lie in franchise, as waifs, wrecks, estrays, is another species of self-remedy analogous to distress for rent. (Bl. Com., quoted 3 Ste. Com. 352.)
2. Redress by
the joint act
2. In addition to these remedies by the of the parties. mere act of the party injured, there are two remedies by the joint act of both or all the parties; namely, accord and satisfaction, and arbitration. (Bl. Com., quoted 3 Ste. Com. 353.)
(1) Accord and satisfaction.
(1) Accord is an agreement between the party injuring and the party injured, that the party injuring shall make satisfaction to the injured party, by doing something in lieu of some other thing which the former had failed to do; and satisfaction is the fulfil
ment of such agreement. But the taking a PART IV. smaller sum of money in lieu of a greater does not amount to a legal satisfaction, unless the time or place of payment of the smaller sum is different from that of the debt. (See Bl. Com., quoted 3 Ste. Com. 344-5.) So that a man may give in satisfaction of a debt of 100l. a horse worth 51.; but if he gives 5l., it is not a satisfaction. (3 Ste. Com. 353; Broom Com. 422-3.)
(2) Arbitration is the determination of (2) Arbitraa matter in dispute by a person or persons appointed for that purpose. In some cases, a single arbitrator is appointed: in other cases, two or more arbitrators are appointed; and it is provided that, if they should not agree, another person shall be called in, as umpire, to whose sole judgment the matter shall be referred.
The decision in any of these cases must be in writing, and is called an award. Though the submission to arbitration may be by word or by deed, yet, both of these being revocable in their nature, it became the practice to enter into mutual bonds, with condition under a penalty to stand to the award or arbitration. (Bl. Com., quoted 3 Ste. Com. 354-6.) Real property cannot pass by a mere
PART IV. award; but an arbitrator may award a conveyance or release of real estate, and it will be a breach of the arbitration bond to refuse compliance.
The parties may agree that their submission of a matter which is the subject of an action or suit, shall be made a rule of any of the Courts of Record, and may insert such agreement in their submission or promise or the condition of the arbitration bond. And where the subject-matter of an action involves matters of account which cannot be conveniently tried in the ordinary way, the Court or Judge may order it to be referred, either to an arbitrator appointed by the parties, or to an officer of the Court, or, in country causes, to the Judge of the County Court. If an award has been obtained by undue means, or the arbitrators or umpire have been guilty of misbehaviour, it may be set aside; but, unless set aside, an award is final and conclusive, and, upon an action or other proceeding to enforce it, no objection to its validity can be made, except in respect of a defect on the face of the award itself. And after the submission has been made a rule of Court, a party disobeying the award may be punished as for a contempt of Court, unless it be set aside. (3 Ste. Com. 356-8.)
III. The remedies for private wrongs PART IV. effected by the mere operation of law are two; retainer and remitter.
III. Redress by the operation of law.
1. Retainer is the retaining or paying 1. Retainer. himself, by a creditor who is executor or administrator to his debtor. The law allows such creditor to retain so much as will pay himself, before paying any other creditors whose debts are of equal degree; on the ground that the executor or administrator 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 private capacity. (Bl. Com., quoted 3 Ste. Com. 359.)
2. Remitter takes place where he who has 2. Remitter. the right of entry in lands, but is out of possession, afterwards obtains the possession of the lands by some subsequent and of course defective title; in which case
or sent back, by operation of cient and more certain title.
he is remitted
law, to his an
which he has gained by a bad title, is, ipso facto, annexed to his own inherent good one; because otherwise he who has the right would be deprived of all remedy; for, as he himself is in possession of the land, there is no other person upon whom he can make entry. (3 Ste. Com. 360-1; Tomlin's Law Dict.)
OF THE ENFORCEMENT OF RIGHTS, AND THE
OF THE DIFFERENT COURTS.
PART IV. IT is not proposed to treat of the constitution, CAP. I. pleadings, or practice of the various Courts. But it may be useful, in this place, to enumerate and classify the different Courts, before we proceed to speak of their interposition.
Classification of the dif
The Courts, then, may be divided into three classes: 1. Courts of general jurisdiction. 2. Courts of peculiar jurisdiction. 3. Courts of local jurisdiction.
1. Some of the Courts of general jurisdiction are Courts of Law, others are Courts of Equity, others are Courts both of Law and Equity.