Doctrine of remitter. Right by ac tion. Right by entry. On this principle depended the doctrine of remitter, which, prior to the recent abolition of real actions, was applicable where one, who had the true property, or jus proprietatis, in lands, but was out of possession, and had no right to enter without recovering possession by real action, had afterwards the freehold cast upon him by some subsequent and, of course, defective title, in which case he was remitted or sent back by operation of law to his ancient and more certain title, and the right of entry which he had gained by a bad title was held to be ipso facto annexed to his own inherent good one, so that his defeasible estate was utterly defeated and annulled by the instantaneous act of law, without his participation or consent (6). The reason of this was, because he who possessed the right would otherwise have been deprived of all remedy; for, as he himself was the person in possession of the freehold, there was no other person against whom he could bring an action to establish his prior right; and hence the law adjudged him to be in by remitter, that is, in the like condition as if he had lawfully recovered the land by suit (c). There could, however, according to the above doctrine, be no remitter where issue in tail was barred by the fine of his ancestor, and the freehold was afterwards cast upon him; for he could not have recovered such estate by action, and, therefore, could not be remitted to it (d). Neither will the law supply a title grounded upon matter of record; as, if a man be entitled to a writ of error, and the land descend to him, he shall not be in by remitter (e). But the doctrine of remitter was, and still is, also applicable where a party in possession of land under a defeasible title (b) 3 Bla. Com. 20. See this subject treated at length, Vin. Abr. "Remitter: " Shep. Touch., by Preston, 156, n. (82); 286. (c) 3 Bla. Com. 20. (d) 3 Bla. Com., 16th ed., 21, and n. (1). See also Bac. Max., Vol. 4, p. 40. (e) Bac. Max., reg. 9 ad finem. acquires a right to assert an older and better title, not by action, but by entry, in which case neither the circumstance of his having acquired the possession of his own voluntary act, nor of his having come in under a conveyance operating by the Statute of Uses, will prevent the application of the doctrine of remitter (ƒ). Thus, if A. disseises B., that is, turns him out of possession, and afterwards demises the land to B. (without deed) for a term of years, by which B. enters, this entry is a remitter to B.,. who is in of his former and surer estate. But if A. had demised to him by deed indented, or by matter of record, there B. would not have been remitted. For, if a man by deed indented takes a lease of his own lands, it shall bind him to the rent and covenants, because a man can never be allowed to affirm, that his own deed is ineffectual, since that is the greatest security on which men rely in contracting; and the same doctrine of estoppel would apply, if the lease were by matter of record (g). The principle embodied in the above maxim likewise ap- Retainer. plies in the case of retainer (h), that is, where a creditor is made executor or administrator to his debtor. If a person indebted to another makes his creditor 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 creditor whose debts are of equal degree. This, be it observed, is a remedy by the mere act of law, and grounded upon this reason, that the executor cannot, without an evident absurdity, commence a suit against himself (f) Judgment, Doe d. Daniell v. Woodroffe, 10 M. & W. 633*, citing Litt., ss. 691-693. (g) 3 Steph. Com. 379, 380. is by some writers referred to the 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 (i): and, in this case, the law, according to the observation of Lord Bacon above given, rather puts him in a better degree and condition than in a worse, because it enables him to obtain payment before any other creditor of equal degree has had time to commence an action (j). An executor de son tort is not, however, allowed to retain, for that would be contrary to another rule of law, which will be hereafter considered-that a man shall not take advantage of his own wrong (k). Marine insur ance. Perils of sea, &c. IN JURE NON REMOTA CAUSA SED PROXIMA SPECTATUR. (Bac. Max., reg. 1)-It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree (1). The above maxim is in practice almost exclusively applied to, and may therefore with propriety be illustrated by, the law of marine insurance (m), in which it is an established rule, that the loss must be a direct, and not a remote con (i) 3 Bla. Com. 18; 2 Wms. Exors., 3rd ed., 835. (j) 3 Steph. Com. 379. (k) 2 Bla. Com. 511; 2 Steph. Com. 247; 2 Wms. Exors., 3rd. ed., 842. (1) Bac. Max., reg. 1. This maxim has been considered here for the sake of convenience, but might more properly be inserted in Chapter VII., which contains rules relating peculiarly to the Law of Contracts. (m) As to remote damage, ante, p. 97. See per Ld. Mansfield, C. J., Wadham v. Marlow, 1 H. Bla. 439, note. sequence of the peril insured against (n); that, if the proximate cause of the loss or injury sustained be not reducible to some one of the perils mentioned in the policy, the underwriter will not be liable: thus it may in general be said, that every thing which happens to a ship in the course of her voyage by the immediate act of God, without the intervention of human agency, is a peril of the sea(o); for instance, if the ship insured is driven against another by stress of weather, the injury which she thus sustains is admitted to be direct, and the insurers are liable for it; but, if the collision causes the ship injured to do some damage to the other vessel, both vessels being in fault, a positive rule of the Court of Admiralty requires that the damage done to both ships be added together, and that the combined amount be equally divided between the owners of the two. In this case, if the ship insured has done more damage than she has received, and is consequently obliged to pay the balance, this loss can neither be considered a necessary nor a proximate effect of the perils of the sea. It grows out of a provision of the law of nations, and cannot be charged upon the underwriters (p). So, where a merchant vessel was taken in tow by a ship of war, and thus exposed to a tempestuous sea, the loss thence arising was held to be properly ascribable to the perils of the sea (q). And where a ship meets with sea damage, which checks her rate of sailing, so that she is taken by an enemy, from whom she would otherwise have escaped, the loss is to be ascribed to the capture, not to the sea damage (r). So, the underwriters are liable for a loss arising immediately from a peril of the sea, but remotely (n) Park. Mar. Insur., 8th ed., 131. (0) Id. 136. (p) De Vaux v. Salvador, 4 A. & E. 420, 431. (q) Hagedorn v. Whitmore, 1 Stark. N. P. C. 157. (r) Judgment, Livie v. Janson, 12 Actions against carriers. from the negligence of the master and mariners (s). But where the ship, being delayed by the perils of the sea from pursuing her voyage, was obliged to put into port to repair, and, in order to defray the expenses of such repairs, the master, having no other means of raising money, sold part of the goods, and applied the proceeds in payment of these expenses, the Court held, that the underwriter was not answerable for this loss, for the damage was to be considered, according to the above rule, as not arising immediately from a peril of the sea, although in a remote sense it might be said to have been brought about by a peril of the sea (t). The same principle, that the law looks to the immediate and not to the remote cause of damage, is likewise applicable in some cases where the liability of carriers comes under consideration. Thus, an action was brought against the defendants, as carriers by water, for damage done to the cargo by water escaping through the pipe of a steam-boiler, in consequence of the pipe having been cracked by frost; and the Court held, that the plaintiff was entitled to recover, because the damage resulted from the negligence of the captain in filling his boiler before the proper time had arrived for so doing, although it was urged in argument, that the above maxim applied, and that the immediate cause of the damage was the act of God (u). In another recent case, the facts were, that the plaintiff put on board defendant's barge a quantity of lime, to be con East, 653; citing Green v. Elmslie, (s) Walker v. Maitland, 5 B. & (t) Powell v. Gudgeon, 5 M. & S. 431, 436; recognised, Sarquy v. Hobson, 4 Bing. 131; Gregson v. Gilbert, cited, Park. Mar. Insur., 8th ed., 138. (u) Siordet v. Hall, 4 Bing. 607. The legal consequences of the act of God will be considered more fully hereafter. |