REMEDY. The means employed to enforce a right or redress an injury.
2. The importance of selecting a proper remedy is made strikingly
evident by tho following statement. "Recently a common law barrister, very
eminent for his legal attainments, sound opinions, and great practice,
advised that there was no remedy whatever against a married woman, who,
having a considerable separate estate, had joined with her husband in a
promissory note for X2500, for a debt of her husband, because he was of
opinion that the contract of a married woman is absolutely void, and
referred to a decision to that effect, viz. Marshall v. Rutton, 8 T. R. 545,
he not knowing, or forgetting, that in equity, under such circumstances,
payment might have been enforced out of the separate estate. And afterwards,
a very eminent equity counsel, equally erroneously advised, in the same
case, that the remedy was only in equity, although it appeared upon the face
of the case, as then stated, that, after the death of her husband, the wife
had promised to pay, in consideration of forbearance, and upon which promise
she might have been arrested and sued at law. If the common law counsel had
properly advised proceedings in equity, or if the equity counsel had advised
proceedings by arrest at law, upon the promise, after the death of the
husband, the whole debt would have been paid. But, upon this latter opinion,
a bill in chancery was filed, and so much time elapsed before decree, that a
great part of the property was dissipated, and the wife escaped with the
residue into France, and the creditor thus wholly lost his debt, which would
have been recovered, if the proper proceedings had been adopted in the first
or even second instance. This is one of the very numerous cases almost daily
occurring, illustrative of the consequences of the want of, at least, a
general knowledge of every branch of law."
3. Remedies may be considered in relation to 1. The enforcement of
contracts. 2. The redress of torts or injuries.
4.-Sec. 1. The remedies for the enforcement of contracts are generally
by action. The form of these depend upon the nature of the contract. They
will be briefly considered, each separately.
5.-1. The breach of parol or simple contracts, whether verbal or
written, express or implied, for the payment of money, or for the
performance or omission of any other act, is remediable by action of
assumpsit. (q, v.) This is the proper remedy, therefore, to recover money
lent, paid, and had and received to the use of the plaintiff; and in some
cases though the money have been received tortiously or by duress of, the
person or goods, it may be recovered.in this form of action, as, in that
case, the law implies a contract. 2 Ld. Raym. 1216; 2 Bl. R. 827; 3 Wils. R.
304; 2 T. R. 144; 3 Johns. R. 183. This action is also the proper remedy
upon wagers, feigned issues, and awards when the submission is not by deed,
and to recover money due on foreign judgments; 4 T. R. 493; 3 East, R. 221;
11 East, R; 124; and on by-laws. 1 B. & P. 98.
6.-2. To recover money due and unpaid upon legal liabilities, Hob. 206;
or upon simple contracts either express or implied, whether verbal or
written, and upon contracts under seal or of record, Bull. N. P. 167; Com.
Dig. Debt, A 9; and on statutes by a party grieved, or by a common informer,
whenever the demand is for a sum certain, or is capable of being readily
reduced to a certainty; 7 Mass. R. 202; 3 Mass. R. 309, 310; the remedy is
by action of debt. Vide Debt.
7.-3. When a covenantee, has sustained damages in consequence of the
non-performance of a promise under seal, whether such promise be contained
in a deed poll, indenture, or whether it be express or implied by law from
the terms of the deed; or whether the damages be liquidated or unliquidated,
the proper remedy is by action of covenant. Vide Covenant.
8.-4. For the detention of a chattel, which the party obtained by
virtue of a contract, as a bailment, or by some other lawful means, as by
finding, the. owner, may in general support an action of detinue, (q.v.) and
replevin; (q.v.) or when he has converted the property to his own use,
trover and conversion. (q.v.)
9.-Sec. 2. Remedies for the redress of injuries. These remedies are
either public, by indictment, when the injury to the individual or to his
property affects the public; or private, when the tort is only injurious to
the individual.
10. There are three kinds of remedies, namely, 1. The preventive. 2.
That which seeks for a compensation. 3. That which has for its object
punishment.
11.-1. The preventive, or removing, or abating remedies, are those which
may be by acts of the party aggrieved, or by the intervention of legal
proceedings; as, in the case of injuries to the. person, or to personal or
real property, defence, resistance, recaption, abatement of nuisance, and
surety of the peace, or injunction in equity and perhaps some others.
12.-2. Remedies for compensation are those which may he either by the
acts of the party aggrieved, or summarily before justices, or by
arbitration, or action, or suit at law or in equity.
13.-3. Remedies which have for their object punishments, or compensation
and punishments, are either summary proceedings before magistrates, or
indictment, &c. The party injured in many cases of private injuries, which
are also a public offence, as, batteries and libels, may have both remedies,
a public indictment for the criminal offence, and a civil action for the
private wrong. When the law gives several remedies, the party entitled to
them may select that best calculated to answer his ends. Vide 2 Atk. 344; 4
Johns. Ch. R. 140; 6 Johns. Ch. Rep. 78; 2 Conn. R. 353; 10 Johns. R. 481; 9
Serg. & Rawle, 302. In felony and some other cases, the private injury is so
far merged in the public crime that no action can be maintained for it, at
least until after the public prosecution shall have been ended. Vide Civil
remedy.
14. It will be proper to consider, 1. The private remedies, as, they
seek the prevention of offences, compensation for committing them, and the
punishment of their authors. 2. The public remedies, which have for their
object protection and punishment.
15.-1. Private remedies. When the right invaded and the injury committed
are merely private, no one has a right to interfere or seek a remedy except
the party immediately injured and his professional advisers. But when the
remedy is even nominally public, and prosecuted in the name of the
commonwealth, any one may institute the proceedings, although not privately
injured. 1 Salk. 174; 1 Atk. 221; 8 M. & S. 71.
16. Private remedies are, 1, By the act of the party, or by legal
proceedings to prevent the commission or repetition of an injury, or to
remove it; or, 2. They are to recover compensation for the injury which has
been committed.
17.-1. The preventive and removing remedies are principally of two
descriptions, namely, 1st. Those by the act of the party himself, or of
certain relations or third persons permitted by law to interfere, as with
respect to the person, by self-defence, resistance, escape, rescue, and even
prison breaking, when the imprisonment is clearly illegal; or in case of
personal property, by resistance or recaption; or in case of real property,
resistance or turning a trespasser out of his house or off his land, even
with force; 1 Saund. 81, 140, note 4; or by apprehending a wrong-doer, or by
reentry and regaining possession, taking care not to commit a forcible
entry, or a breach of the peace; or, in case of nuisances, public or
private, by abatement; vide Abatement of nuisances; or remedies by distress,
(q.v.) or by set off or retainer. See, as to remedies by act of the parties,
1 Dane's Ab. c. 2, p. 130.
18.-2. When the injury is complete or continuing, the remedies to obtain
compensation are either specific or in damages. These are summary before
justices of the peace or others; or formal, either by action or suit in
courts of law or equity, or in the admiralty courts. As an example of
summary proceedings may be mentioned the manner of regaining possession by
applying to magistrates against forcible entry and detainer, where the
statutes authorize the proceedings. Formal proceedings are instituted when
certain rights have been invaded. If the injury affect a legal right, then
the remedy is in general by action in a court of law; but if an equitable
right, or if it can be better investigated in a court of equity,' then the
remedy is by bill. Vide Chancery.
19.-2. Public remedies. These may be divided into such as are intended
to prevent crimes, and those where the object is to punish them. 1. The
preventive remedies may be exercised without any warrant either by a
constable, (q.v.) or other officer, or even by a private citizen. Persons in
the act of committing a felony or a broach of the peace may arrested by any
one. Vide Arrest. A public nuisance may be abated without any other warrant
or authority than that given by the law. Vide Nuisance. 2. The proceedings
intended as a punishment for offences, are either summary, vide Conviction;
or by indictment. (q.v.)
20. Remedies are specific and cumulative; the former are those which can
alone be applied to restore a right or punish a crime; for example, where a
statute makes unlawful what was lawful before, and gives a particular
remedy, that is specific and must be pursued, and no other. Cro. Jac. 644; 1
Salk. 4 5; 2 Burr. 803. But when an offence was antecedently punishable by a
common law proceeding, as by indictment, and a statute prescribes a
particular remedy, there such particular remedy is cumulative, and
proceedings may be had at common law or under the statute. 1 Saund. 134, n.
4. Vide Bac. Ab. Actions in general, B; Bouv. Inst. Index, h.t.; Actions;
Arrest; Civil remedy; Election of Actions.
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