Сн. 2. Art. 6. Mass. acts, sect. 5. 11. But the sixth section of the said statute of Mass. forbids any rescue of a distress made on that act; and in the qui tam action on it, its illegality cannot be pleaded. 12. By this act it is provided, that if any proprietor in Feb. 24, 1786, any common or general field put in any creature above his number allowed him, or before the day agreed on, or keep in after the time set by a major vote of the proprietors, he is deemed a trespasser, and such creature may be taken damage feasant by any one of the proprietors. 5 T. R. 246, Mod. 21-24, dows. 2 D. & E. 24, 28.-5 East 230-5 D. & E. 141. § 13. If a tenant hold under two tenants in common, and pay all the rent to one, after notice from the other not so to pay, the other may distrain for his share. 14. The implements of one's trade may be distrained in certain cases, where not in actual use or exempted by statute. Where a distress escapes, though against the distrainer's will, there is no remedy for the same damages. He had his election to have trespass or to distrain, and he makes his election to distrain. His action of trespass is then gone, and when he lets the creatures distrained escape he loses his pledge by his own fault, and cannot distrain again. So no remedy remains. But suppose at common law, the owner of the beasts lawfully distrained rescues them going to pound, must not the distrainer have an action for the rescue, or be restored to his action of trespass. But this question cannot arise under our statutes, because that forbids such rescue. ART. 6. By accord and satisfaction. 1. This also is a remedy by the act of both parties; and is, when the injury is done and considered, and one agrees to give, and the other to accept something in satisfaction of it. As this is a remedy by consent and agreement, the parties must necessarily be of age, and capable of contracting. The principle is this if I have a right to demand and receive money or property of one for debt, or damage, or otherwise; I may by law, for some good consideration, release to him, and whatever I can release to him, I can relinquish for something I deem a satisfaction, and thereby bar my demand. But if my demand be grounded on a deed or title to real estate, my remedy is not gone by this accord and satisfaction, because a maxim of law applies, to wit: "unumquodque dissolvi eo ligamine quo ligatum est;" or when my right is proved by evidence of a higher nature, as by deed, or by evidence, which gives me title to real estate, this right cannot be done away by evidence of an inferior nature, as accord and satisfaction is. And in the application of the Cro. J. 99- rule, unumquodque &c., a distinction has been truly taken which narrows it; as where A leased lands &c. to B, who assigned them to C, against whom A brought covenant for not 541-1 Stra. repairing the house; and C pleaded an accord between him Cro. Car. 193. -2 Wils. 376, Payne's case. -3 East. 251. -6 - Co. 44, Blake's case. -3 Wood's Con. 588. 1 Esp. 148, 261, 371.— Cro. El. 304, and A, and satisfaction thereof. A demurred and the plea was adjudged good; for the above rule did not apply. But this rule only applies when the duty arises or accrues by the deed itself in certainty at the time of making it, as by a bond &c. to pay a sum of money. Here the certain duty takes its essence solely by the deed, and in no degree from any subsequent act or event, and so ought to be avoided by matter of as high a nature, that is, by deed. "But when no certain duty accrues by the deed, but by a wrong or default subsequent, together with the deed, an action is given to recover damages, which are only in the personalty, for such wrong or default; accord with satisfaction is a good plea ;" as in this case a deed to repair and the subsequent neglect to repair. "The covenant doth not give the plt. at the time of making it any cause of action, but the default or wrong after in not repairing," with the deed, gives an action to recover damages. Both the deed and this default are essential to the support of the action-Does not appear whether the accord was before or after the covenant was broken. 2. It is laid down as settled law, that "in all cases where arbitrament is a good plea, accord and satisfaction is a good plea ;" and generally, in all cases where damages only are to be recovered, arbitrament, or accord and satisfaction is a good plea. So either is good in mayhem, in waste against the lessee for years, &c. CH. 2. Art. 7. case-2 T. non's case. 3. So accord and satisfaction is a good plea in ejectione 9 Cro. 77, 78, firma, in the English practice; but a right or title to a free- &c., Pentor's hold cannot be barred by any accord with collateral satisfaction; R. 24, 28.and if divers things are to be performed by accord, all must Stra. 426.-4 be performed. The accord was for a trespass &c. committed Cro. 1, Ver4. Accord and satisfaction, with one trespasser, discharges 1 Bac. Abr. all of them. The best manner of pleading accord and satisfac- 223.-Stra. 573.-1 Esp. tion is to say, that one gives $5 in full satisfaction, and that 261, Payne v. the other accepts this in full satisfaction. Such giving and such acceptance are both essential to make this remedy valid; and also, it must appear the satisfaction is a good and valuable one, and complete and executed; and so it must be shewn what it was. §.5. Of late it has been said, that on mutual promises an action lies, and consequently, there being equal remedies on both sides, an accord may be pleaded without execution, as well as an award. And formerly it was held, that an award, except in certain cases, could not be pleaded to an action, unless it were executed. As accord and satisfaction is a plea in bar in assumpsit and other actions, it will be further considered in future chapters. See 5 Johns. R. 386, 392. ART. 7. By arbitration. § 1. A remedy by arbitration is so Masten.—2 Wils. 86, Weston's case.-5 Co. case. 117,118, Fen nel's case.12 Mod. 85.- 1 Raym. 60, 122, 450.-1 Cro. El. 66, Han v. Gorge Bac. Abr. 223. Сн. 2. Art. 7. Cro. El. 66, 49 E. 3. 3.-1 far one by the act of the parties, that no recourse is had to legal process, unless one party refuse to perform the award; as an award is often a plea in bar in assumpsit and other actions, and is, also, often the foundation of an action, it will be considered, for the most part, under the heads of assumpsit and debt; and only a few things will be noticed here, and some few in pleadings. § 2. The ways of submitting to arbitration are many; as by bond or covenant, in writing or by parol, all demands or some demands particularly specified. So that the award be made generally or by such a time; by all the arbitrators, or by a major part of them, in writing or in writing under seal, &c. The law in regard to awards has been materially altered in two centuries. Ancient niceties and strictness are now rejected; and the courts of law, as well as courts of equity, principally regard the intentions of the parties submitting and of the referees. 3. It is, however, still a legal question of some nicety, when an award extinguishes the old cause of action; when it does not, that may be again referred or sued. But neither when the award extinguishes it. The general principle is, that the award extinguishes it, whenever it gives a new cause or ground of action. But there are some exceptions to this rule; for in some cases the party in whose favour an award is made may sue on that, or resort to the former cause of action, and in some not; and it is only in the latter case the award finally settles any matter between the parties, by their act &c. and without legal process. 4. Anciently there were some decisions that an award did not bar the former action, unless performed or executed. Hence in trespass, the defts. pleaded an award in bar, that the defts. should pay to the plt. 20s. &c. but did not plead payment; to which the plt. demurred, because he did not plead performance of the award, and the demurrer was allowed by the court. This is not the law now. 5. It has also been held, that if the award be, that the Bac. Abr. 224. deft. pay a sum of money at a certain day in satisfaction of an action, and fail to pay at the day, the award is no bar, for it is his fault he does not pay according to the award. And in this Rol. Abr. 267. case he shall not compel the plt. to sue on the award: but a 1 Bac. Abr. tender of payment is equal to a performance. So if the party entitled to receive, neglected performance on his part. 224. 6. But now the established rule is, that an award without performance is a good bar to an action on the case, if the parties have mutual remedies against each other to compel an execution of the matters awarded, but it is otherwise where there are not mutual remedies to enforce performance. And if the award be void, and the plt. has no remedy on it to enforce performance, it is no bar to the action. And if an award be right, the court will not intend it otherwise, and in order to set it aside the mistake must be plain and gross. CH. 2. Art. 7. 7. And whenever an award is only as to a particular matter, Lofft 34, 554. it must be so pleaded, and not as to a general indebitatus assumpsit; as where the award extends to certain grain only, then it extends not to a general indebitatus assumpsit; but if an award be general and valid, it may be in bar of all the pro- Carth. 187, mises generally for when the deft. pleads on award after 188.-1 Bac. the promises made, he admits the plt. has cause of action them, but that he is barred by the award, and this bar can extend no further than the award goes. And the admission even of the colour of an action is sufficient to prevent the pleading amounting to the general issue. on Abr. 226. 8. So an award is no bar, where nothing is awarded, that 12 Mod. 423. will bear an action, though mutual releases be awarded. $9. An award decides the right as effectually as a judgment at law, or a decree in chancery; and is as binding, till regularly set aside in a proper manner. 10. It is said that awards must be mutual; this means no more than that where a sum of money &c. is awarded to one party, there must be money &c. or a discharge to the other, by release or otherwise. And if it appear "by the general tenor of the award, that the thing awarded to be done on the one side, was intended as a recompense for injuries sustained by the other, that is considered as rendering the award sufficiently mutual, without any words of discharge." § 11. And it is now settled, "that it is not necessary that the award itself should express that a sum, awarded to be paid, or an act to be done in favour of one of the parties, shall be in satisfaction; or that it should contain any equivalent expressions: a discharge to the other must necessarily be presumed from the payment of the sum or performance of the act." -1 Bac. Abr. 227. Kyd on Award 148, 153. in error 130, 187. 12. An award performed is a bar to an action for a mat- 1 Day's cases ter submitted and awarded upon, till regularly set aside; nor 134-1 Esp. can the plt. in such action attack its validity, by alleging fraud R. 377.— in the party obtaining. This decision must have been on the Peake's R. ground, that an award is in the nature of a judgment, rendered by men appointed by the parties, and not to be indirectly impeached; and it has been also decided, that monies voluntarily paid on an award, cannot be recovered back, while it shall remain, and not set aside in a regular manner, as in the case of a judgment of court. 13. Submission of all matters pending in court. The award was, 1, that all suits between the parties cease; 2, that the deft. pay the plt. £10 in full of all demands, and give VOL. I. 19 a 6 Mod. 33, Squire v. Trevitt.-2 961.-1. Salk. Ld. Raym. 74. 142 Сн. 2. REMEDIES BY THE ACTS OF THE PARTIES. release from the beginning of the world to the time of the award; 3, that on the receipt of the £10 the plt. give a like release to the deft. This is a final award, and extinguishes the cause of action; and to tender the £10 is the same as paying it, and " determining a suit determines the right of the thing; because there is no remedy but by suit." But a release of an action does not bar a right of entry, and as to the release to the time of the award, for no cause of action shall be understood between the time of the submission and of the award, unless shewn, and if any appear the party may say, "he tendered a release to the time of the submission." The bonds and promises by which awards have been made effectual remedies by the acts of the parties, have been numerous and variant, some concise, some prolix, &c., but the best forms are unquestionably those collected from good pleadings, and are to be seen in the subjoined notes. NOTES. THE penal part of an arbitration bond is in common form. The following condition is in the case of arvitration and umpire both; if no umpire, the first part applies. The condition of this obligation is-Whereas certain differences have arisen between the parties, and they have agreed to submit the same, and all disputes, trespasses, and demands between them, to the award and determination of A, B, and C, or the major part of them. Now if the said O shall abide by, keep, and perform the said award and determination of the said arbitrators, or the major part of them, upon the premises, provided their said award be ready to be given in, in writing on or before But if the said arbitrators do not make such award of and concerning the premises, by the time aforesaid, then if the said O on his part shall, in all things, well and truly abide by, keep, and perform the award, arbitrament, and umpirage of D, umpire indifferently chosen between the parties, to end the said matters and differences; so as the said umpire do make his award and umpirage of and concerning the premises, and deliver the same in writing under his hand and seal to the said parties, on or before --, then this obligation to be void, else to remain in full force. Signed, sealed, &c. The substance of an award or umpirage is in this form-generally best to be written on the rule, &c. or submission: We [referees] or [umpire] [as the case may be,] within named, having notified, met, and heard the said parties, their obligations, and evidence, do award, order, and adjudge, that the said his executors or administrators, shall pay or cause to be paid to said - his executors or administrators, the sum of that on the payment thereof the said charges make to each other a general release of all of action, bonds, &c. and demands from instead of releases may be to pay in full, &c. and said to on or before and - shall at their proper matters, actions, causes or the conclusion |