I. ACCORD is a fatisfaction 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; this is an [ 16 ] injury for which the sufferer 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 redress of that injury, and entirely takes away the action ". 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 mistakes 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 or impar*,) to whose 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 question 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 Y. But the right of real property cannot thus pafs by a mere award: 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 release of land; and it will be a breach of the arbitration-bond to refufe compliance. For, though originally the fubmission to arbitration used to be by word, or by deed, yet both of thefe being revocable in their nature, it y Brownl. 55. 1 Freem. 410.

W

9 Rep. 79.

* Whart. Ang faer. i. 772. Ni. chols Scot hift. libr. ch. 1. prope finem.

2 Roll. Abr.242. 1Lord Raym.115.

VOL. III.

C

is

is now become the practice to enter into mutual bonds, with condition to ftand to the award or arbitration of the arbitrators [17]or umpire therein named 2. And experience having fhewn the great ufe of thefe peaceable and domestic tribunals, espe cially in fettling matters of account, and other mercantile tranfactions, which are difficult and almoft impoffible to be adjusted on a trial at law; the legislature has now established the ufe of them, as well in controverfies where caufes are depending, as in thofe where no action is brought: enacting, by statute 9 & 10 W. III. c. 15. that all merchants and others, who defire to end any controverfy, fuit, or quarrel, (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 shall be made a rule of any of the king's courts of record, and may infert fuch agreement in their fubmiffion, or promife, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witnefles thereto, the court fhall make a rule that fuch fubmiffion and award fhall be conclufive: and, after fuch rule made, the parties difobeying the award fhall be liable to be punished, as for a contempt of the court; unlefs fuch award fhall be fet afide, for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court, within one term after the award is made (9). And, in confequence of this ftatute, it a Append. No. III. §. 6.

(9) A motion to set aside an award under a fubmiffion by an obligation, must be made before the laft day of the next term after the award is made. 95 10 W. III. c. 15. f. 2. T. R. 781But this does not extend to an award made in pursuance of an order of nifi prius. Str. 301. If a motion be made to fet afide an award under the ftatute, because it has been procured by corruption or undue micans, or for any matter extrinsic the award, it must be made before the end of the next term; but an application for an attachment for not performing an award, may be refifted at any time for defects appearing on the face of the award itself; for fuch an award, after that time, might be pleaded in bar to any action brought upon it. Pedley v. Goddard, 7 T. R. 78.

Submiffions

is now become a confiderable part of the business of the fuperior courts, to set aside such awards when partially or ille

Submiffions to arbitration were entered into by a rule of the court at the common law when a cause was depending, and the ftatute of king William was intended to give the fame efficacy to awards where no fuit or action was instituted. 2 Burr. 701. A

verbal agreement to abide by an award cannot be made a rule of court. 7 T. R. 1.

Where a caufe is referred by an order of nifi prius, and it is agreed that the costs fhall abide the event of the award, this fignis fies the legal event; and if the arbitrator awards such damages for a trefpafs or an affault as would not, if given in a verdict, carry cofts to the plaintiff, he cannot recover them under this reference, the award in fuch inftances being not equivalent to the certificate of a judge. 3 T. R. 138. But arbitrators may award costs at their difcretion, unless there is an express provision in the rule, that the costs shall abide the event of the award. 2 T. R. 644. If it is awarded that one of the parties fhall pay the costs of the action, the costs of the award are not included. H. Bl. Rep. 223.

When arbitrators have the power of electing an umpire, they may chufe him and call in his affiftance as foon as they begin to take the subject into confideration. And this is the more convenient practice, as it fecures a decifion upon a fingle inveftigation of the controversy. 2 T. R. 644. The agreement to a reference must be expreffed with great caution and accuracy, for if it is agreed to refer all matters in difference between the parties in the caufe; the arbitrators are not confined to the subject of the cause alone, as they are when it is agreed to refer all matters in difference in the caufe between the parties. 2 T. R. 645. Yet after an award under a reference in the first case, either party may maintain an action for a right or demand fubfifting at the time of the reference, but not difputed or referred to the arbitrators. 4 T. R. 146.

The court will not grant an attachment against a member of parliament for non-payment of money according to an award. 7 T. R. 448. If an arbitrator award that an administrator, who has fubmitted to the award, fhall pay a certain fum, he is precluded afterwards from objecting that he has no affets to fatisfy the demand. 7T. R. 453.

Courts of equity exercife a jurifdiction in fetting afide awards, particularly if a difcovery or an account is prayed; but an arbi

gally made; or to enforce their execution, when legal, by the fame procefs of contempt, as is awarded for difobedience to thofe rules and orders which are iffued by the courts themfelves.

trator cannot be made a party, if it is agreed by the fubmiffion bond that no bill in equity fhall be filed against him. 2 Atk. 395Where it was one of the articles of co-partnership that all differences fhould be referred to arbitration, it was decided, that a court of equity could entertain no jurisdiction of the subject untik the parties had referred their difputes to the confideration of arbitrators. 2 Bro. 336. But it has fince been determined that an agreement or covenant to refer all differences to arbitration, and not to file any bill in equity, or bring any action at law, cannot take away the jurifdiction of any court in Weftminster Hall. But an action might be brought for the breach of this covenant. 2 Vef. jun. 129. And where a fubmiffion to an award is made a rule of court, and it is part of the rule that the parties fhall file no bill in equity, it is in the difcretion of the court of law, whether they will enforce that part of the rule by attachment or not. Ib. 451.

Arbitrations being unattended by the inevitable delay and expence of public litigation, are of such infinite importance to the community, that it is rather furprizing that the legislature has not yet given to arbitrators a power of compelling the attendance of witneffes, or of adminiftering an oath to them. For until they poffefs this authority, like courts of juftice, however wife and righte ous their awards may be, it cannot be expected that they can give the fame fatisfaction to those who are interested in the event of the controverfy.

CHAPTER THE SECOND.

1

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 compafs: there being only two inftances of this fort that at present occur to my recollection; the one that of retainer, where a creditor is made executor or adminiftrator to his debtor; the other, in the case of what the law calls a remitter.

I. If a perfon indebted to another makes his creditor or debtee his executor, or if fuch creditor obtains letters of administration to his debtor; in thefe cafes the law gives him a remedy for his debt, by allowing him to retain fo much as will pay himself, before any other creditors whofe debts are of equal degree. This is a remedy by the mere act of law, and grounded upon this reason; that the executor cannot, without an apparent abfurdity, commence a suit against himfelf as a reprefentative 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, fo much as is fufficient to answer his own demand is, by operation of law, applied to that particular purpose. Elfe, by being made executor,

1 Roll. Abr. 922. Plowd. 543. See vol. II. page 511.