No. 2504.

Book 4, tit. 2, chap. 2, sec. 2, § 4, art. 7.

No. 2504.

condition that the parties will abide by the award, in this case the remedy is by an action of debt, for the penalty of the arbitration bond, or by an action of covenant, upon the deed of submission.

When the submission was made a rule of court, the remedy may be by attachment for contempt in not obeying the order of the court, or by execution upon the judgment entered up pursuant to the rule of court, or to the statute.

If the submission was made by authority of a particular statute, the remedy which it provides must be pursued.

The award is in general conclusive, but it may be impeached for any material defect apparent upon its face, such as excess of power by the arbitrators; defect of execution of power by omitting to consider a matter submitted, when such matter is important; or where a plain mistake of law has been made, as, where freight was allowed for a voyage, where the ship had never broken ground.

Fraud in obtaining the submission, or in procuring the award, by the successful party, or corruption in the arbitrators, will of course vitiate the award.

When the submission was lawfully revoked, it is clear the arbitrators had no longer any power to make the award. This revocation may be a fact, or in law, as by death.

2. Effect of the award on the title of property.

2504. An award does not so far affect property, real or personal, as to transfer the title to it by its mere force and operation. It is undisputed that when the award directs one to convey certain land to another, although an action will lie, or an attachment may be granted, in a proper case, for not conveying the land, or equity will decree a specific performance of the

No. 2505.

Book 4, tit. 2, chap. 3, sec. 1.

No. 2506.

award, (a) yet the land does not pass by the mere force of the award.(b)

It has also been holden that a chattel does not pass by the award. All matters in difference between a landlord and tenant were submitted to arbitration; among other things it was awarded that the latter should deliver up to the former a stack of hay, then upon the premises, at a certain price to be paid for it by the landlord. The tenant refused to accept the money tendered, and would not deliver the hay, upon which the landlord brought an action of trover for it; the court held the action was not maintainable, because the title to the hay did not pass by the mere force of the award.(c)

But though the title to the property does not pass by the mere force of the award, yet the parties may submit to arbitration a dispute respecting the right to certain property, real or personal, and the award will be conclusive between them. (d)

CHAPTER III.-OF REMEDIES WITHOUT ACTION, BY THE OPERATION OF LAW.

2505. The remedies which are effected by operation of law are but few; they will be considered in separate sections.

SECTION 1.-OF THE RIGHT OF RETAINER.

2506. Retainer is the act of withholding what one has in one's hands by virtue of some right. The

(a) Philbrick v. Preble, 6 Shepl. 255; Pawling v. Johnson, 6 Litt. 1; Jones v. Boston Mill Corporation, 6 Pick. 148.

(b) Denn v. Allen, 1 Pen. 48; Imlay v. Wikoff, 1 South. 132.

(c) Hunter v. Rice, 15 East, 100.

(d) Doe v. Rosser, 3 East, 11; Blanchard v. Murray, 15 Verm. 548: Shelton v. Alcox, 11 Con. 240; Cox r. Jagger, 2 Cowen, 638; Whitney v. Holmes, 15 Mass. 153; Shepherd v. Ryers, 15 John. 497. See Tevis v. Tevis, 4 Monr. 47; Evans v. McKinsay, 6 Litt. 263.

No. 2507.

Book 4, tit. 2, chap. 3, sec. 1, § 1, art. 1, 2.

No. 2509.

subject will be considered by inquiring, 1, who may retain; 2, against whom; 3, on what claims; 4, what amount may be retained.

§ 1.-Who may retain.

2507. An executor or administrator has a right to retain in certain cases, for a debt due to him by the estate of a testator or intestate. In inquiring into this right, it is natural to consider, 1, those cases where there is but one executor or administrator; 2, where there are several.

Art. 1.—Of the right of a sole executor to retain.

2508. A sole executor may retain in those cases where, if the debt instead of being due to him, had been due to a stranger, such stranger might have sued the executor and recovered judgment; or where the executor might, in the due administration of the estate, have lawfully paid the same. (a) He may, therefore, retain a debt due to himself, (b) or to himself in right of another, (c) or to another in trust for him; (d) the debt may also be retained when administration is committed to another, for the use of the creditor, who is a lunatic, or an infant.(e) An executor may retain before he has proved the will, and, when he dies, after having intermeddled with the goods of the testator, and before probate, his executor has the same power.(f)

Art. 2.-Of the right to retain when there are several executors. 2509. When there are several executors, and one has a claim against the estate of the deceased, he may retain with or without the consent of his coëxecu

No. 2510.

Book 4, tit. 2, chap. 3, sec. 1, § 2, art. 1, 2, 3.

No. 2513.

tors; (a) when there are several creditors among the executors, of equal degree, and the estate is insolvent, they are entitled to retain pro rata.(b)

§ 2. Against whom an executor may retain.

2510. The right of retainer may be exercised, 1, where the deceased was bound alone; 2, where he was bound with others; 3, where the executor of the obligee is also executor of the obligor.

Art. 1.-Where the deceased was bound alone.

2511. Where the deceased was the sole obligor, and the executor was his creditor, the latter has a clear right to retain.

Art. 2.-Where the testator was bound with others.

2512. Where there are several debtors jointly and severally bound, and one of them appoints the obligee his executor, (c) or the obligee takes out letters of administration to his estate, the debt is immediately satisfied by way of retainer, when the executor or administrator has sufficient assets. But in such case the other debtors will be liable to the executor, qua executor, to contribute to the payment of the debt, unless the testator was the actual debtor, and the other obligors were his sureties.

Art. 3.-When one person is executor of both obligor and obligee. 2513. If the obligee make the executor or administrator of the obligor his own executor, it is a discharge of the debt, if as executor or administrator of the debtor he has assets sufficient; but if he has fully administered, or if no assets of the debtor's estate have

(a) Off. Ex. 33.

(b) Bac. Ab. Executors, A 9.

(c) Bac. Ab. Executors, A 9; Com. Dig. Administration, c. 1.

No. 2514.

Book 4, tit. 2, chap. 3, sec. 1, § 3.

No. 2514.

come to his hands, it is no discharge, for there is nothing for him to retain.

§ 3.—On what claims the executor may retain.

2514. Of the claims the executor may retain, we must consider, 1, their priority; 2, their nature.

1. Nearly all systems of law give some debts a priority over others in the case of an insolvent estate; funeral expenses, physician's bill for the last sickness of the deceased, and some others, have a preference over others in perhaps all the states of the Union. It would be difficult to make a table showing the order of paying the debts of an insolvent estate in each state, and it would lead to no practical result.

An executor having a claim of a particular class, cannot retain assets to pay himself to the injury of a creditor of a class having a preference over him; and the reason for this, independently of any statutory provision, is clear; he could not, by bringing a suit against himself, have obtained any advantage, or recovered in prejudice of such a creditor. (a) He may retain only where he has a superior claim or one of equal degree, (b) and in the latter case only pro rata.

In a case were two were jointly bound in a bond, one as principal and the other as surety, after which the principal died intestate and the surety took out administration to his estate, the bond being forfeited, the administrator paid the debt; it was held he could not retain as a specialty creditor, because being a party to the bond it became his own debt, (c) and, having paid it, he became a simple contract creditor and might retain as such. (d)

2. As to the nature of the claim for which an execu

(a) Bac. Ab. Executors, A 9; Com. Dig. Administration, A 9.

(b) 3 Bl. Com. 18; 11 Vin. Ab. 261.

(c) 11 Vin. Ab. 265. But see Dorsheimer v. Bucher, 7 S. & R. 9. (d) Com. Dig. Administration, c. 2, n.