Commentaries on the Laws of England/Of Redress by the mere operation of Law
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 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; 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[1]. 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, 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 the creditor who first commences his suit is intitled 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[2]. Nor shall an executor of his own wrong be in any case permitted to retain[3].
II. Remitter 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[4]. 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 consent[5]. As if A disseises B, that 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 entering thereon till he proves his right in an action: now, if afterwards C the heir of the disseisor makes a lease for life to D, with remainder to B the disseisee for life, and D dies; hereby the remainder accrues to B, the disseisee: 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 surer estate[6]. For he hath hereby gained a new right of possession, to which the law immediately annexes his antient right of propriety.
If the subsequent estate, or right of possession, be gained by a man’s own act or consent, as by immediate purchase being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right[7]. Therefore it is to be observed, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant, not gained by his own act or folly. The reason given by Littleton[8], why this remedy, which operates silently and by the mere act of law, was allowed, is somewhat similar to that given in the preceding article; because otherwise he who hath right would be deprived of all remedy. For as he himself is the person in possession of the freehold, there is no other person against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes[9], the benignity of the law is such, as when, to preserve 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 worse. Nam quod remedio destituitur, ipsa re valet; si culpa absit. But there shall be no remitter to a right, for which the party has no remedy by action[10]: as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards cast upon him; he shall not be remitted to his estate tail[11]: for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As therefore the issue in tail could not by any action have recovered his antient estate, he shall not recover it by remitter.
And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished by the law, where the parties are so peculiarly circumstanced, as not to be able to apply for redress in the usual and ordinary methods to the courts of public justice.