PRIVATE WRONGS.
BOOK III.

CHAPTER THE SECOND.
OF REDRESS BY THE MERE OPERATION
OF LAW.

THE remedies for private wrongs, which are effected by the mere operation of law, will fall within a very narrow compafs: there being only two inftances of this fort that at prefent occur to my recollection; the one that of retainer, where a creditor is made executor or adminiftrator to his debtor; the other, in the cafe 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 adminiftration 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 himfelf, before any other creditors whofe debts are of equal degree^a . This is a remedy by the mere act of law, and grounded upon this reafon; that the executor cannot, without an apparent abfurdity, commence a fuit againft himfelf as reprefentative of the deceafed, to recover that which is due to him in his own private capacity: but, having the whole perfonal eftate in his hands, fo much as is fufficient to anfwer his own demand is, by oeration of law, applied to that particular purpofe. Elfe, by being made executor, he would be put in a worfe condition than

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^a 1 Roll. Abr. 922. Plowd. 543.
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all
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all the reft of the world befides. For, though a ratable payment of all the debts of the deceafed, in equal degree, is clearly the moft equitable method, yet as every fcheme for a proportionable diftribution of the affets among all the creditors hath been higherto found to be impracticable, and productive of more mifchiefs than it would remedy; fo that the creditor who firft commences his fuit is intitled to a preference in payment; it follows, that as the executor can commence no fuit, he muft be paid the laft of any, and of courfe muft lofe his debt, in cafe the eftate of his teftator fhould prove infolvent, unlefs he be allowed to retain it. The doctrine of retainer is therefore the neceffary confequence of that other doctrine of the law, the priority of fuch creditor who firft commences his action. But the executor fhall not retain his own debt, in prejudice to thofe of a higher degree; for the law only puts him in the fame ftuation, as if he had fued himfelf as executor, and recovered his debt; which he never could be fuppofed to have done, while debts of a higher nature fubfifted. Neither fhall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both fhall be difcharged in proportion^b . Nor fhall an executor of his own wrong be in any cafe permitted to retain^c .

II. REMITTER is where he, who hath the true property or jus proprietatis in lands but is out of poffeffion thereof and hath no right to enter without recovering poffeffion in an action, hath afterwards the freehold caft upon him by fome fubfequent, and of courfe defective, title: in this cafe he is remitted, or fent back, by operation of law, to his antient and more certain title^d . The right of entry, which he hath gained by a bad title, fhall be ipfo facto annexed to his own inherent good one; and his defeafible eftate fhall be utterly defeated and annulled, by the inftantaneous act of law, without his participation or confent^e . As if A diffeifes B; that is, turns him out of poffeffion, and dies leaving a

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^b Viner. Abr. t. Executors. D. 2.
^c 5 Rep. 30.
^d Litt. §. 659.
^e Co. Litt. 358. Cro. Jac. 489.
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C 2

fon,

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fon C; hereby the eftate defcends to C the fon of A, and B is barred from entering thereon till he proves his right in an action: now, if afterwards C the heir of the diffeifor makes a leafe for life to D, with remainder to B the diffeifee for life, and D dies; hereby the remainder accrues to B, the diffeifee: 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 furer eftate^f . For he hath hereby gained a new right of poffeffion, to which the law immediately annexes his antient right of propriety.

IF the fubfequent eftate, or right of poffeffion, be gained by a man's own act or confent, as by immediate purchafe being of full age, he fhall not be remitted. For the taking fuch fubfequent eftate was his own folly, and fhall be looked upon as a waiver of his prior right^g . Therefore it is to be obferved, that to every remitter there are regularly thefe incidents; an antient right, and a new defeafible eftate of freehold, uniting in one and the fame perfon; which defeafible eftate muft be caft upon the tenant, not gained by his own act or folly. The reafon given by Littleton^h , why this remedy, which operates filently and by the mere act of law, was allowed, is fomewhat fimilar to that given in the preceding article; becuafe otherwife he who hath right would be deprived of all remedy. For as he himfelf is the perfon in poffeffion of the freehold, there is no other perfon againft whom he can bring an action, to eftablifh his prior right. And for this caufe the law doth adjudge him in by remitter; that is, in fuch plight as if he had lawfully recovered the fame land by fuit. For, as lord Bacon obfervesⁱ , the benignity of the law is fuch, as when, to preferve 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 worfe. Nam quod remedio deftituitur, ipfa re valet; fi culpa abfit. But there fhall be no remitter to a right, for which the party has

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^f Finch. L. 194. Litt. §. 683.
^g Co. Litt. 348. 350.
^h §. 661.
ⁱ Elem. c. 9.
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Ch. 2.
no remedy by action^k: as if the iffue in tial be barred by the fine or warranty of his anceftor, and the freehold is afterwards caft upon him; he fhall not be remitted to his eftate tail^l : for the operation of the remitter is exactly the fame, after the union of the two rights, as that of a real action would have been before it. As therefore the iffue in could not by any action have recovered his antient eftate, he fhall not recover it by remitter.

AND thus much for thefe extrajudicial remedies, as well for real as perfonal injuries, which are furnifhed by the law, where the parties are fo peculiarly circumftanced, as not to be able to apply for redrefs in the ufual and ordinary methods to the courts of public juftice.

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^k Co. Litt. 349.
^l Moor. 115. 1 And. 286.
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