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mand must be made at some seasonable time, for if it be made at an unseasonable hour, it will not avoid the effect of a tender. 37
2440. With regard to the tender of specific articles, it is a rule that they are to be tendered at some particular place, and not, as in the case of money, to the person of the creditor wherever found. When no place is expressly designated in the contract, the place of delivery is to be ascertained by the intent of the parties, to be collected from the nature of the case and its circumstances. If, for example, the contract is for the delivery of goods from the seller to the buyer on demand, the former being a manufacturer of such goods or a dealer in them, no place being particularly named, the manufactory or store of the seller will be considered as the place intended, and a tender there will be sufficient. The intent of the parties here is the guide. For the same reason, when the goods are at another place at the time of sale the intention must be presumed to be that the goods should be delivered there.
When the articles are cumbrous, and the place of delivery is not designated nor to be inferred from circumstances, the presumed intention is that they shall be delivered at such reasonable place as the creditor shall appoint; and if, upon being requested if within the state to appoint a place, he refuses or neglects so to do, or appoints an unreasonable place, the right of appointment passes to the debtor, who is bound to give notice to the creditor of such appointment, if practicable, and a proper tender of the goods will pass the title to the creditor, and the creditor will be absolved from the obligation. 38
With regard to the manner of tendering the goods it may be observed that when specific articles are tendered, if they are part of a larger quantity, they should be so designated and set apart that the creditor may see and know what is offered to be his own. And when an offer of packages is made, those packages must be tendered under such circumstances that the person who is to pay for the goods shall have an opportunity afforded him, before he can be called upon to part with his money, of seeing that the goods presented for his acceptance are in reality those for which he has contracted. 40
We have seen that a tender of money must be made on the day it becomes due, and that, when made afterward, it goes only in mitigation of damages. The rule with regard to the time when a tender of specific articles must be made is different; if it be not made at the day, it cannot be made afterward."
When stock is to be tendered, every thing must be done by the debtor to enable him to transfer it, but it is not absolutely requisite that it should be transferred."
2441 For the purpose of defending himself from an expected action on a contract, the defendant may in many cases before the commencement of the action purchase or obtain a negotiable bill or note upon which the expected plaintiff is indebted, and if sued afterward, he may avail himself of a set-off.
37 Tucker v. Buffum, 16 Pick. Mass. 46. 38 Coke, Litt. 210, b; Aldrich v. Albee, 1 Me. 120. See Bixby v. Whitney, 5 Me. 192; Slingerland v. Morse, 8 Johns. N. Y. 474. See before, 941-952.
39 Veazy v. Harmony, 7 Me. 91.
“2 Strange, 504, 533, 579.
REMEDIES WITHOUT ACTION.
2443–2480. Remedies by act of the party aggrieved.
2449. Abatement of nuisances. 2450-2480. The remedy by distress. 2454, 2455. The rent for which distress may be made.
2454. The nature of the rent.
2455. The amount of the rent. 2456–2466. Who may make a distress.
2456. Tenant in severalty.
2466. Guardians. 2467-2469. What things may or may not be distrained.
2468. Goods absolutely exempt from distress. 2469. Goods conditionally exempt from distress.
2470. When a distress should be made. 2472–2474. Where a distress may be made.
2473. On the land.
2474. Off the land.
2476. By whom to be made.
2480. Effects of a distress.
2483. The parties to an accord.
2485. Effect of accord and satisfaction. 2486--2504. Arbitration.
2487. The submission.
2495. The arbitrators and umpire. 2496–2504. The award.
2497. The award must conform to the submission.
2500. The award must be possible, lawful, and reasonable.
2504. Effect of the award on title to property.
2508. A sole executor.
2509. When there are several executors.
2511. When the deceased was bound alone.
2518. Kinds of liens.
2442. The remedies without legal assistance may be divided into three classes : first, by the act of the party aggrieved, second, by the act of both parties, and, third, by operation of law.
2443. If there are two things diametrically opposed to each other, they are violence and law: in societate civili aut lex aut vis valet.
The law rules every fact and every human action; it is present everywhere, and so exerts its salutary influence as to prevent force from intruding itself anywhere to do justice. Force can seldom be used except by the magistrate to attain the ends of the law. The rule ne privatus sibi ipsi jus dicat is, in the social state, not only a law, but a condition of existence.
There are some situations, however, where a party has not the time or opportunity to invoke the aid of the magistrate. In those rare exceptions, which prove the existence of the rule, the law has put a limited remedy in the hands of the party injured. He acts not in opposition, but under the sanction and in accordance with the law. There can be no law against the law.
The party aggrieved may remove or redress an injury by self-defence, and the defence of those related to him, by recaption and entry, by the removal of nuisances and other injuries, and by distress. .
2444. The subject of self-defence, and of the defence of relations and of property, real and personal, has been fully considered elsewhere, so that here it is only necessary to refer to the subject.“
2445. Recaption is the act of a person who has been deprived of the custody of another, to which he is legally entitled, by which he regains the peaceable custody of such person ; or of the owner of personal or real property who has been deprived of his possession, by which he retakes the possession peaceably. It may be made of a person, of personal property, or of real estate. In every case it must be done peaceably, without occasioning a breach of the peace, or doing an injury to a third person who has not been guilty of the wrong.
2446. Recaption of a person is the act by which one who has been unlawfully deprived of the custody of another, to which he is lawfully entitled, regains the peaceable custody of such person.
* 2 Rolle, 55, 56, 208; 2 Rolle, Abr. 565.
The right of recaption of a person is confined to a husband in taking his wife; a parent, his child, when he has the lawful custody of such child; a guardian of the person, his ward; and, according to Blackstone, a master, his servant; but this must be only when the servant assents to the recaption, unless he is an apprentice bound to render services and stay with his master. In these cases the party injured may enter the house of the wrong doer, without a demand being first made, the outer door being open, and take and carry away the person wrongfully detained. He may also, for that purpose, enter the house of the person harboring, who was not concerned in the abduction, if he can do so peaceably, but a demand should be first made.3
But if the person attempting to make the recaption be resisted with force, his remedy is by an application to a court, or a judge, who will grant a writ of habeas corpus on behalf of the person having a right to the custody.
2447. Recaption of personal property is the act of the owner of chattels who has been deprived of his possession by which he retakes possession peaceably. For this purpose, when he has been dispossessed, he may in general justify the retaking them from the house and custody of the wrong doer, even without a previous request to redeliver them. But in this kind of recaption too much care cannot be observed to avoid any personal injury or breach of the peace.
When, on the contrary, the chattels have not been originally illegally seized, but are merely wrongfully detained, the owner must request a redelivery; nor can the owner without leave enter the house or land of a third person, not privy to the wrongful retainer, to take his goods out of it.”
If the property taken has been altered in its form, or improved without altering it into a different species, the owner may retake the whole.
When goods are obtained of a purchaser by false and fraudulent pretences, no property passes, and the vendor may lawfully rescue and retake them, even by stratagem, wherever he can find them.?
In some cases the party injured has no remedy by action at law, and the right of recaption is the only one which avails him; as, where one of several joint tenants, or tenants in common, of a chattel, takes the exclusive possession of the property. But though the injured party has no remedy at law, yet, in some cases, equity will regulate the enjoyment of such joint property.
As to the extent of force which the owner of real estate may use, it is a rule that to justify an entry into the house or land of another to retake personal property, it must be shown that it was improperly taken away, or received, or detained, and placed by the wrong doer in his house or land; in this case an entry may be made without previous request. In all other cases, to entitle the owner to retake such property the owner can only justify molliter manus, nor can he without leave, as before observed, enter the house of a third person not privy to the wrongful detainer to take his goods, if they get there through his own default.10
Goods which have been obtained fraudulently under color of a contract may be retaken by the seller, because no title passed to the pretended purchaser. The seller may in like manner retake goods which he has sold without fraud,
See Anthony v. Haney, 8 Bingh. 186.
if they are in transitu, that is, if they have not arrived at their place of destination and the purchaser has become insolvent, and for this purpose he may use any means short of force. 11
The owner of a chattel has a right to take it into his possession, although he never possessed it before; as, where a man purchases a specific chattel, for example, the horse Napoleon, and he pays for him or tenders the price to the seller, if the seller refuses to deliver him he may take him, if he can do so peaceably; but if the sale be not of a specific chattel; as, if a man sell one hundred bushels of wheat to be taken out of a certain heap, the purchaser cannot justify taking it, because no property in the wheat passed to the buyer until the wheat was ineasured and separated from the mass.
2448. By entry or re-entry of lands, which is a kind of recaption, is meant the resumption or retaking possession of land which the party lately had. A celebrated writer 12 says that the owner of such land, after being disseised, if he cannot re-enter by fair means, may legally regain the possession thereof by force, 18 unless he were put to the necessity of bringing his action by having neglected to re-enter in due time, that is, twenty years. But this dictum, unsupported by any authority, may well be questioned, for it is a universal principle that whenever a man has an opportunity to apply to the law for the redress of an injury, he is bound to invoke its aid and not take the remedy in his own hands, which might lead to a breach of the peace. If the owner enters by force, he may be indicted for a breach of the peace ;15 but he will retain the lawful possession of his estate, and the original wrong doer cannot maintain a civil
a action for such regaining possession as far as regards any alleged injury to the house or land, or the expulsion, though he may maintain an action for any unnecessary personal injury which he may have sustained, or for any damage to his furniture which could have been avoided."
2449. When discussing the remedy for a nuisance in a preceding title,18 we considered the right which any one who was annoyed by it had to remove it, and the remedy afforded by courts of equity will be considered under the head of equity.19
2450. A distress is defined to be the taking of a personal chattel without legal process from the possession of the wrong doer into the hands of the party aggrieved; as, a pledge for the redress of an injury, the performance of a duty, or the satisfaction of a demand.20 The thing seized is also called a distress.
This remedy is coeval with the common law, and its origin appears to be concealed in the night of time. It probably was not fully established till some period during what are called the feudal times. When the feudal system prevailed in its fullest vigor, the reasons for which a distress can now be made were sufficient to cause a forfeiture of the feud. In the course of time this system of forfeiture was changed, and the law was mitigated so far that the lord
" Lickbarrow v. Mason, 2 Term, 75; The Constantia, 6 C. Rob. Adm. 324. See before, 959.
Hawkins, P. C. B. 1, c. 28, n. 3, s. 1.
Mussey v. Scott, 32 Vt. 82. 14 See Rex v. Scott, 3 Burr, 1698; King v. Wilson, 8 Term, 357. 15 Commonwealth v. Haley, 4 All. Mass. 318. 16 Winter v. Stevens, 9 All. Mass. 526; Krevet v. Meyer, 24 Mo. 107; Fuh v. Dean, 26 Mo. 116.
17 It is a mooted question whether an excess of force renders the entry void ab initio, or merely gives a claim for damages. Many cases hold that, a forcible entry being proved, a writ of restitution must be awarded, whether the right of peaceable entry existed or not. McCauley v. Weller, 12 Cal. 500; Beeler v. Cardwell, 29 Mo. 72; Tucker v. Phillips, 2 Metc. Ky. 416. Before, 2387.
19 Beyond, 3799. 20 3 Sharswood, Blackst. Comm. 6.