his act, the owner may justify an entry to take them. (Chambers v. Bedell, 2 Watts & S. 225; 37 Am. Dec. 508; Wheelden v. Lowell, 50 Me. 499; Richardson v. Anthony, 12 Vt. 273; Patrick v. Colerick, 3 Mees. & W. 483: Allen v. Feland, 10 Mon. B. 306.) Some of these cases go further, and hold that the owner may enter to take his own property, peaceably, in all cases when he is not himself in fault for their being there. But the weight of authority is against this extension of the complied license. The mere fact that a person owns a chattel gives him no right to go upon the land of another to obtain possession of it. (Heermance v. Vernoy, 6 Johns. 5; Roach v. Dameron, 2 Humph. 425), even if they are joint owners (Hemdon v. Bartlett, 4 Port. 48); still less to send another for that purpose. (Jackson v. Welsh, 14 Johns. 406; Morgan v. Varick, 8 Wend. 587.)

Nor will anything less than a wrongful “taking” from the owner justify his entry. It is not enough that the land-owner may have "deprived him of his property"" in Blackstone's language (meaning property as distinct from possession), as by conversion, or by fraud. He must resort to his action in such cases (Roach v. Dameron, 2 Humph. 425), though Allen v. Feland, 10 Mon. B. 306, seems contra. And a fraudulent purchase, rescinded by the vendor, has been held equivalent to a trespass for this purpose, as for some others. (Wheelden v. Lowell, 50 Me. 499.) In the cases where neither party has placed the goods on the land in question, or is in fault for their being there-and especially when the act of God in the form of a tempest or inundation has been the sole cause-there is more conflict opinion. The high authority of Judge Story is in favor of the owner's right to enter in such case (Bailments

83, n.), and Mr. Bigelow agrees with him. (Torts, p. 17.) See, also, Hammond's Nisi Prius, 168, 3; 1 Cushing's Domat, 334, where the rule of Roman law to that effect may be found.

But the decided cases do not sustain this view; and it would take very strong judicial authority to establish the principle that one man has the right to enter another's close without his consent, merely because he has chattels there. It may be a great hardship in some cases to exclude him; but sympathy with this is the duty of the land-owner, not of the law.

(4) Accord is a satisfaction agreed upon between the parties, page 15.

In recent books a distinction is commonly made between the two words: accord meaning the agreement between the parties as to the terms of compromise or settlement, and satisfaction the performance thereof by payment or other act. Thus when it is said that accord without satisfaction is not binding, it means only what Blackstone expresses by saying that the accord "when performed is a bar of all actions upon this account." But a satisfaction actually given and accepted will be such a bar without a previous accord (U. S. v. Adams, 7 Wall. 463; U. S. v. Child, 12 Wall. 232); and is not set aside by a subsequent unavailing attempt at arbitration. (Hemingway v. Slansell, 106 U.S. 399.)

(5) The land might have been aliened collusively without the consent of the superior, page 16.

For the reason why an arbitrator's award could not transfer the title to land, it is hardly necessary to invoke feudal principles, or a non-existent dependence on the consent of the superior. The reason was the same that prevented land passing, as chattels might, in consequence of a judgment for the value in money (see note 82 to book 2, page 689), or by any mere contract, or grant, or by a decree in equity. None of these could take the place of an actual transfer of possession or livery of seisin; without which a change of possession

was a mere fiction. When land could pass by a deed, under the statute of uses, there was no reasons left why it should not also pass by a deed of submission to an award: but the habit of requiring an express transfer was too strong to be overthrown.

CHAPTER THE SECOND.

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 [see note 6, page 32]; 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 creditor obtains letters of administration to his debtor; in these cases 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. 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 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, [19] 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

a 1 Roll Abr. 922. Plowd. 54.

**Quoted, 11 R. I. 271; partly, 8 Humph. 340; partly, and explained, 5 Peters, 311; 9 Ill. 300. Cited, 5 Ohio, 82.

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 therefore the necessary consequence of that other doctrine of the law, the priority 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 retain his own debt, in prejudice to that of his co-executor in equal degree; but both shall be discharged in proportion. Nor shall an executor of his own wrong be in any case permitted to retain.c

II. Remitter [see note 7, page 32] is *where he, who hath the true property or jus proprietatis in 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. The 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 consert. As if A disseises B, that [20] is, turns him out of possession, and dies leaving a son C; hereby the estate descends to C the son of A, and B is barred from enterb Viner Abr. t. Executors. D. 2. d Litt. 659. c 5 Rep. 30.

e

Co. Litt. 358. Cro. Jac. 489.

**Quoted, 4 Port. 364. Cited, 26 N. J. L. 328.