Accord Arbitration.

also to the continuance, of the lien; it may, therefore, be lost by voluntarily parting with the possession of the goods.

The right of the holder of the lien is generally confined to the mere right of retainer. Whether an authority to sell exists, is a matter to be carefully examined before exercising any, such power. In some cases a court of equity will decree a sale to satisfy such lien.

ARTICLE X.

REDRESS BY JOINT ACTS OF THE PARTIES.

Section 1. In general. There are two remedies which may be secured by the joint act of both parties, and thus obviating the necessity for an action. One is by an accord, and the other by arbitration. These will be briefly noticed in their order.

Section 2. Accord. An accord is the settlement of a dispute, or the satisfaction of a claim, by an executed agreement between the party injuring and the party injured. Some of the requisites of an accord are the following: It must be legal; it must be advantageous to the party claiming the performance of a contract, or damages for an injury; it must be certain; the defendant must be privy to the contract, as an accord from a stranger is not sufficient; the accord must be executed, for until then it is no satisfaction; the acceptance of a collateral thing of value is a good satisfaction; so is a mutual agreement to discontinue two cross-actions. An agreement to pay a less sum of money in discharge of a larger money debt is not a good accord, unless the money is paid before the larger sum was due, or at a different place. The effect of a valid accord and satisfaction is to discharge the claim made, and to bar any future action upon it. See 1 Wait's Law and Prac. 1036 to 1042.

Section 3. Arbitration. An arbitration is a submission and reference of a matter in dispute concerning property, or in relation to a personal wrong, to the decision of one or more persons, called arbitrators, who are to render a judgment thereon, called an award. The general subject of arbitrations will be explained elsewhere and the subject will be dismissed, with the general remark, that a valid submission and a proper award thereon will bar any action upon the claim submitted and passed upon. See 1 Wait's Law and Prac. 1011 to 1036.

Set-off-Marriage of debtor and creditor.

ARTICLE XI.

REDRESS BY OPERATION OF LAW.

Section 1. In general. A part of the remedies of this nature have already been noticed under another head. See Retainer, Remitter, Lien.

Section 2. Set-off. The right of a party to set-off his demand against the claim of another person against him did not exist at common law. The principle of set-off is, that when one man has a claim for a sum of money against another, and is also indebted to him, he may consider his claim to be a discharge or extinguishment of his debt, if it be equal in amount, or pro tanto, if unequal. This rule is founded upon reason and justice, and it tends to prevent the unnecessary multiplication of suits with their attendant inconveniences and costs. As the subject of set-off will be fully explained in this work, no further notice is here necessary, except to state that the right, as it now exists, is founded upon various statutes. See 1 Wait's Law and

Prac. 966 to 979.

Section 3. Marriage of debtor and creditor. By the common law, if a woman married her creditor or her debtor, in either case the debt was absolutely extinguished. No discussion of this matter is to be expected here, as the mere mention of it will call attention to this subject, which is all that is needed.

ARTICLE XII.

CAUTIONS IN RELATION TO RESORTING TO THESE REMEDIES WITHOUT ACTION.

Section 1. In general. It is to be remembered that although the law allows an extrajudicial remedy, yet that remedy is not compulsory, and does not exclude the ordinary course of justice; it is only an additional weapon put into the hands of persons in particular instances, when natural equity or the peculiar circumstances of their situation require a more expeditious remedy than the formal process of a court of judicature can furnish. In many cases the party may resort to both remedies. A party who is assaulted may defend himself from violence, and yet may

Cautions in relation to resorting to these remedies without action.

retake

afterward bring his action for the assault. A person may his goods in a fair and peaceable way, and the recaption does not bar his subsequent action, although the return may mitigate damages. A party may enter on lands, if he has a right of entry, or may demand possession by action. So he may abate a nuisance or call upon the law to do it for him. There is one general consideration which ought always to be borne in mind, and that is, there are cases in which a resort to these remedies, by the act of the party, will bar him from bringing a subsequent action for the same subject-matter.

As this chapter was designed to be a mere statement of general rules for the information of the student, and for the convenience of the practitioner, rather than a treatise upon the topics mentioned, the reader will be required to examine other works whenever it may become important to examine the law applying these rules to any particular case.

CHAPTER VIII.

EVIDENCE TO SUSTAIN ACTION.

ARTICLE I.

IS IT EXISTENT AND AVAILABLE.

Section 1. In general. Although the plaintiff's right of action may be clear upon such facts as he has assumed to be true, yet he cannot safely bring an action unless he can prove the existence and truth of such facts on the trial of the cause. If he is not possessed of such evidence, or cannot procure it, he is in precisely the same condition as though such facts had no existence.

In a subsequent part of this work will be pointed out in detail the various kinds of evidence which may be used and the modes of procuring it. At present, nothing more will be done than to throw out some considerations to the student or the young practitioner by way of hints in relation to the securing of evidence to sustain the action or the defense.

ARTICLE II.

DOCUMENTARY EVIDENCE.

Section 1. In general. Documentary evidence is most usually in a written or printed form and is frequently termed written evidence. The term "documentary evidence" properly includes all material substances on which the thoughts of men are represented by writing, or any other species of conventional mark or symbol. Best on Ev. 298, § 215. Thus the wooden scores on which bakers, milkmen, etc., indicate by notches the number of loaves of bread or quarts of milk supplied to their customers, the old English exchequer tallies, and such like are documents, as much as the most elaborate deeds. Ib.

Documents, being inanimate things, necessarily come to the cognizance of tribunals, through the medium of human testimony, for which reason some old authors have termed them dead proofs in contradistinction to witnesses who are said to be living proofs.

Written evidence - Division of writings.

ARTICLE III.

WRITTEN EVIDENCE.

Section 1. What it is. Although documentary evidence most usually presents itself in a written or printed form, the terms "writing" and "written evidence" have obtained, in law, a secondary and limited signification in which they are commonly but not always used; and much confusion has arisen from the ambiguous meanings of these terms. The force of written proofs consists in this, that men have agreed together to preserve, by writing, the recollection of things past, and of which they were desirous to establish the remembrance, either as rules for their guidance or to have therein a lasting proof of the truth of what they write. Thus, agreements are written to preserve the remembrance of what the contracting parties have prescribed for them selves, and erect that which has been agreed on into a fixed and immutable law for them. So, wills are written to establish the recollection of what a person who had the right to dispose of his property, has ordained, and make thereof a rule for his heirs and legatees. In like manner are written sentences, decrees, edicts, ordinances, and every thing intended to have the effect of title or of law. The writing preserves unchangeably what is intrusted to it, and expresses the intention of the parties by their own testimony. It is to such documents as these that the terms "writing" and "written evidence" are commonly applied in our books.

Section 2. Division of writings. Writings are of two kinds, public and private. Under the former are classed acts of par liaments, of congress, of the legislatures of States; judgments, decrees and acts of courts, whether of voluntary or contentious jurisdiction; proclamations, public books, and the like. They may also be divided into writings, judicial and not judicial; of record and not of record. Records are the memorials of the legislature and of the courts. Among private writings, the first and most important are those which fall under the description of "deeds," that is, of "writings sealed and delivered." And they differ from inferior written instruments in this important particular, that they are presumed to have been made upon a good consideration; and this presumption cannot be rebutted,