« EelmineJätka »
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 *17]
of the arbitrators *or umpire therein named.(a) And experience having
shown the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law, the legisla
(a) Append. No. III.2 6.
29 And where a party's title to land is referred with his consent, the award is conclusive evidence, and binding on him and his heirs and assigns as to such title. 3 East, 15.–Chitty.
30 If the parties intend to refer all disputes, the terms of the reference should be, "of all matters in difference between the parties.” When the reference is only intended to : be of the matter in a particular cause, it should be, "of all matters in difference in the cause.” 3 T. R. 628. A time should in all cases be mentioned within which the award is to be made; but, if no time be mentioned, the award should be made in a reasonable time. 2 Keb. 10, 20. 3 M. & S. 145. It is usual to vest in the arbitrators a power of enlarging the time for making their award; but it should be stipulated that this enlargement be made a rule of court. It is best to provide that the arbitration is not to be defeated by the death of either party. 7 Taunt. 571. 2 B. & A. 394. 3 D. & R. 184, 608. In some cases the court will amend an order of reference. 5 Moore, 167.
A court of chancery will not decree a specific performance, (19 Ves. 431. 6 Ves. 815,) and no action lies for not appointing an arbitrator, (2 B. & P. 13;) but if a party has agreed not to revoke, or has covenanted to perform an award, and the award be made, he will be liable to an action for a breach of the agreement or covenant if he revoke or refuse to perform the award, (see 5 B. & A. 507. 1 D. & R. 106. 2 Chit. R. 316. 5 East, 266 ; and see 4 B. & C. 103 ;) and an attachment for a contempt of court sometimes lies, where the submission is a rule of court. Crompt. Prac. 262. 1 Stra. 593.7 East, 607.
With respect to the revocation of the arbitrator's authority, it is a rule of law that every species of authority, being a delegated power, although by express words made irrevocable, is nevertheless in general revocable. See 8 Co. 82. A submission to arbitration may be revoked by the act of God, by operation of law, or by the act of the parties.
The death of either or any of the parties before the award is delivered in general vacates the submission, unless it contain a stipulation to the contrary, (see 1 Marsh. 366. 7 Taunt. 571. 1 Moore, 287, S. C. 2 B. & A. 394;) but where all matters in difference in a cause are referred by order of nisi prius to arbitration, the death of one of the parties at any time before award made is a revocation of the arbitrator's authority and the court will set aside an award made after his death ; or, in other words, it should seem, if the cause of action is referred, the death abates the action, but not so if other matters besides the cause of action are referred. 3 D. & R. 608. 2 B. & A. 394.
If a feme-sole submit to arbitration, and marry before the award is delivered, such marriage is in effect a revocation, without notice to the arbitrators, (2 Keb. 865. Jones, 388. Roll. Abr. 331;) but the husband and wife may be sued on their bond for such revoking. 5 East, 266.
Bankruptcy of one of the parties is no revocation. 2 Chit. Rep. 43. 4 B. & A. 250.
The death of the arbitrators, or one of them, will defeat the reference, unless there be a clause in the submission to the contrary, (see 4 Moore, 3 ;) so if the arbitrators do not make the award within the limited time, or they disagree, or refuse to act or intermeddle any further. 1 Roll. Abr. 261. 2 Saund. 129. Tidd, 8 ed. 877.
The parties themselves, as we have just seen, may revoke the arbitrators' authority before the award is made: the revocation must follow the nature of the submission: if the latter be by parol, so may the revocation. 2 Keb. 64. If the submission be by deed, 80 must the revocation. 8 Čo. 72; and see T. Jones, 134. Notice of the revocation by the act of the parties must be given to the arbitrators in order to render it effectual. Roll. Abr. 331. Vin. Abr. Authority, 13; and see 5 B. & A. 507.
The law relating to the proceedings during the conduct of the arbitration, and the duties of arbitrators and umpires, will be found in 3 Chit. Com. Law, 650 to 656, and Caldw. on Arb. 42, 45, &c. As to the power, &c. of awarding costs, see Tidd, 8 ed. 883 to 887. As to when a court of equity will compel an arbitrator to proceed, see 1 Swanst. 40. As to the general requisites of an award and how it will be construed, see 3 Chit. Com. Law, 656 to 660. Tidd, 8 ed. 882. For the remedy to compel the performance of an award, see Tidd, Prac. 8 ed. 887 to 894. 3 Chit. Com. Law, 600 to 665; and for the relief against an improper award, see 3 Chit. Com. Law, 665 to 668. Tidd, Prac. 8 ed. 894 to 898.---Chitty.
ture has now established the use of them as well in controversies where causes are depending as in those where no action is brought: enacting, by statute 9 & 10.W. 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 arbitration-bond: which agreement being proved upon oath by one of the witnesses thereto, the court shåll 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 arbitrator's 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.31
» The Common Law Procedure Act, 1854, it may be observed, contains several very important provisions with reference to arbitrations by consent of parties. Some more particular mention of these enactments may not be considered inopportune.
To prevent an arbitration coming to an end without an award being made, it is provided that if in any arbitration the document authorizing the reference provides that the reference shall be to a single arbitrator, and the parties do not concur in the appointment of an arbitrator; or is any arbitrator refuses to act, or becomes incapable of acting, or dies, and the parties do not concur in appointing a new one; or if, where the parties or two arbitrators are at liberty to appoint an umpire, such parties or arbitrators do not appoint an umpire; or if any umpire refuses to act, or becomes incapable of acting, or dies, and the parties or arbitrators do not appoint a new umpire,—in every such instance any party may serve the other party or the arbitrators, as the case may be, with notice to appoint an arbitrator or umpire; and if within seven days no arbitrator or umpire is appointed, any judge of any of the superior courts. may appoint the arbitrator or umpire.
Nor can a reference be rendered nugatory by the failure of one party to appoint an arbitrator ; for when a reference is to two arbitrators, one to be appointed by each party, and one party fails to appoint an arbitrator for seven days after the other party has done 60 and has served the party thus failing to appoint with a notice to appoint his arbitrator, the party who has appointed may appoint his own arbitrator to act as sole arbitrator, and an award made by such sole arbitrator will then be binding on both parties. The court or a judge may, nevertheless, revoke the appointment on such terms as may seem just.
Formerly it was required that express authority to appoint an umpire should be given 'to arbitrators; otherwise such an appointment could not be made by them. Now, however, when a reference is to two arbitrators, and the document authorizing it does not show that it was intended that there should not be an umpire or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire. They may be called upon to make the appointment b; notice from any of the parties to the reference; and the appointment must be made within seven days; otherwise an umpire may be appointed by a judge.
An arbitrator is also required to make his award within three months after he has been appointed and has entered on the reference, or been called upon by a notice in writing from a party to the reference to do so; but the parties, by consent in writing or the court, may enlarge the time for the arbitrator making his award.
That delay may be avoided, however, when arbitrators cannot agree, it is provided that any umpire, when appointed, may enter on the reference in lieu of the arbitrators, if the latter have allowed their time to expire without making an award, or have delivered to any party, or to the umpire himself, a notice stating that they cannot agreo. Instead of deciding the dispute, an arbitrator may state his award in the form of a special case for the opinion of the court, the nature and object of which proceeding shall be explained afterwards.
Soon after the statute 9 & 10 W. III. c. 15, it was decided that the right to real property could not pass by a mere award. 1 Roll. Abr. 242. 1 Ld. Raym. 115. This subtlety in point of form (for it was soon reduced to nothing else) had its rise from feudal principles; for, if this had been permitted, the land, it was said, might be aliened collusively VOL. II.-2
OF REDRESS BY THE MERE OPERATION OF LAW.
The remedies for private wrongs which are effected by the mere operation of the 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 "ases 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)' 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 besides. For though a ratable payment of all the debts of the deceased, 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
() 1 Roll. Abr. 922. Plowd. 543. See book ii. pago 511. without the consent of the superior. If, therefore, an arbitrator awarded a conveyance or a release of land, and the party ordered to convey refused to do so, the court of chancery must have been resorted to in order to enforce a specific performance of the award. This proceeding is no longer necessary, however; for an award directing the possession of land to be delivered may now be enforced summarily, like a judgment in ejectment. Com. Law Proc. Act, 1854.
An award, as we have seen, is only a final judgment on the matters submitted, when the decision of the arbitrator is properly made. An award may and will be set aside by the court, in the exercise of the summary jurisdiction conferred upon it by the statute before referred to, when the arbitrator has not pursued the submission, or has in any respect exceeded his authority; when the award itself is uncertain or ambiguous; when the proceedings in the arbitration have been irregular; when the arbitrator has misconducted himself; or when the award has been procured by undue means. But these constitute but a few of the instances in which an award will be set aside; for it would be quite out of place here to enter into any detail of the circumstances which will avoid an award.-KERR.
1 Toller, 4 ed. 295, 298. So if a creditor be made a co-executor. 1 B. & P. 630. The same law as to an administrator (8 T. R. 407) or heir. 2 Vern. 62. So if a debtor be made executor of creditor, it is a release at law. Ante, 2 book, 512. Plowd. 184. Salk. 299,-Cutty.
2 The principle of an equal and pro rata distribution of the property of an insolvent de cedent among his creditors has been adopted and successfully carried out in the United States. So far from being impracticable, or accompanied with inconveniences more than counterbalancing its justice, -as the learned commentator plainly intimates,-no voice would be raised anywhere in favour of a return to a system which was a mere scramble as to who should get priority, and with a very unjust power in the executor or administrator not only to prefer himself but others. It follows that in this country there is no such thing as retainer as against other creditors in equal degree. The executor or administrator must come in pari passu with all others, according to the general principles of order settled by the various statutes,-in which there is some diversity, but a manifest tendency in the later legislation to place all debts, without regard to quality, upon one and the same level.--SHARSWOOD.
therefore the necessary consequence of that other doctrine of the law, the prior. ity 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 retan his own debt in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion.(6) Nor shall an executor of his own wrony be in any case permitted to retain.(c)
II. Remitter is where he who hath the true property or jus proprietatis ir: 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 antient and more certain title.(d) Tho 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 consent.(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
[*20 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, or 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 antient right of property.
If the subsequent estate, or right of possession, be gained by a man's own act or eonsent, as by immediate purchase being of full age, he shall not be remitied. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right.(9) Therefore it is to be observed, that to every remitter there are regularly these incidents: an antient 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, (1) the benignity of the law is sui h, 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
[*21 no *remitter to a right for which the party has no remedy by action :(k) as if the issue in tail be barred by the fine or warranty of his ancestors, and the freehold is afterwards cast upon him, he shall not be remitted to his estatetail:(?) 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 antient estate, he shall not recover it by remitter.
And thus much for these extrajudicial 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 pos. sible, to apply for redress in the usual and ordinary methods to the courts of public justice.
(5) Vin. Ahr. tit. erecutors, D. 2.
5 Rep. 36.
() Co. Litt. 348, 350.
Co. Litt. 359. Cro. Jac. 189.
• The issue STEWART.
no longer liable to be barred by these means. Stat. 3 & 4 W. IV. c. 74.
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 required 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 *23]
distrain for rent, or have an action of debt, at my own *option : if I do
not distrain my neighbour's cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction; 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 wberein they happen being such wherein the only possible legal remedy would be directed against the very person himself who seeks relief.
In all other cases it is a general and indisputable rule, that where there is & 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 naturo 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, *24] from the 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 (4) Ch. 1. (6) Co. Litt 68.
() Soo book i. ch. 27