That which is without remedy avails of itself if without fault.
Where the law does not provide an express remedy for an injury, it works one impliedly, by operation of law. It has been said, that if a man seised of a manor, part of which is in lease for life, and part for years, and he levy a fine to A to the use of B in tail, with divers remainders over, in that case B shall avow for the rent, or have an action of waste without attornment ; for that when the reversion is settled in any one in judgment of law and he hath not a possible mean to compel the tenant to attorn, and no laches or default is in him, there he shall avow and have an action of waste without attornment, for the rule is, “Quod remedio destituitur”. Attornments are now, however, rendered unnecessary by the 4 Anne, c. 161), which enacts that all grants and conveyances of manors, lands, rents, reversions, etc. shall be good without the attornment of the tenants ; and an assignee of the reversion, whether by way of mortgage or otherwise, may sue for the rent or distrain without any attornment.
When a creditor is made executor, though he has lost his remedy by action for his debt upon the principle that a man cannot be at the same time plaintiff and defendant, he is nevertheless permitted to retain the amount due to him out of the moneys of his debtor, the testator, come to his hands ; and that by operation of law, the law having vested all the estate of the testator in him, subject to the payment or retention of the testator's debts and legacies, of which the debt due to the executor is one. In debts of equal degree the executor is entitled to retain his own first, and this right of retention devolves to an executor of an executor. An executor de son tort is not allowed so to retain his debt even if of a higher degree than others, and though the rightful executor had, after action, consented to the retainer. For, that would encourage creditors to strive who should first take possession of the goods of the deceased, and to take advantage of their own wrong. On the same principle is it that if a creditor make his debtor his executor, this will be a discharge in law of the debt ; as, if the obligee of a bond make the obligor his executor, this amounts in law to a release of the debt ; or, if the creditor appoint one of several joint, or one of several joint and several, debtors his executor ; this is an extinguishment of the debt at law, and a release to them all. For a release to one of several obligors, jointly, or jointly and severally bound, discharges the others, and may be pleaded in bar. This rule, however, as between the debtor executor and the creditors of the testator, only applies where there are sufficient assets to pay the testator's debts. And there is a difference here between an executor and an administrator ; in the first case the suspension of the debt being the voluntary act of the creditor, and the action being for ever gone, in the second the remedy being merely suspended by act of law.
One partner cannot sue his co-partner at law for his share of the partnership property generally, though he may sue his partners or any of them individually upon any separate claim he may have against them, or upon a stated balance of partnership accounts; or, having a right to relief for some breach of the partnership articles, he may by bill in equity dissolving the partnership, thereby obtain the relief he seeks.