REMEDY. The means employed to enforce a right or redress an
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 hushand in a promissory note for X2500, for a debt
of her hushand, 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 hushand, 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 hushand, 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
3. Remedies may be considered in relation to 1. The enforcement of contracts.
2. The redress of torts or injuries.
4. - §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 re-ceived 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
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 cliattel, 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.
9. - §2 . Remedies for the redress of injuries. These remedies are either
public, by indictment, when the injury to the individual or to Iiis property
affects the public; or private, when the tort is only injurious to the
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 arb itration, 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
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 proccedings, 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 re-gaining
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 re-tainer. 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
jus-tices 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
magis-trates 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
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 preven-tive
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 indict- ment. (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
REMEMBRANCERS; Eng. law. Officers of the exchequer, whose duty it is
to remind the lord treasurer and the justices of that court of such things as
are to be called and attended to for the benefit of the crown.
REMISE. A French word which literally means a surrendering or
returning a debt or duty.
2. It is frequently used in this sense in releases; as, "remise, release and
forever quit-claim." In the French law the word remise is synonymous with our
word release. Poth. Du Contr. de Change, n. 176; Dalloz, Dict, h. t.; Merl. Rep.
REMISSION, civil law. A release.
2. The remission of the debt is either conventional, when it is expressly
granted to the debtor by a creditor having a capacity to alienate; or tacit,
when the creditor voluntarily surrenders to his debtor the original title under
private signature constituting the obligation. Civ. Code of Lo. art. 2195.
3. By remission is also understood a forgiveness or pardon of an offence. It
has the effect of putting back the offender into the same situation he was
before the commission of the offence. Remission is generally granted in cases
where the offence was involuntary, or committed in self defence. Poth. Pr. Civ.
sec t. 7, art. 2, §2.
4. Remission is also used by common lawyers to expresss the act by which a
forfeiture or penalty is forgiven. 10 Wheat. 246.
TO REMIT. To annul a fine or forfeiture.
2. This is generally done by the courts where they have a discretion by law:
as, for example, when a juror is fined for nonattendance in court, after being
duly summoned and, on appearing, he produces evidence to the court that he was
sick and unable to attend, the fine will be remitted by the court.
3. In commercial law, to remit is to send money, bills, or something which
will answer the purpose of money.
REMITTANCE, comm. law. Money sent by one merchant to another, either
in specie, bill of exchange, draft or otherwise.
REMITTEE, contracts. A person to whom a remittance is made. Story on
REMITTER, estates. To be placed back in possession.
2. When one having a right to lands is out of possession, and afterwards the
freehold is cast upon him by some defective title, and he enters by virtue of
that title, the law remits him to his ancient and more certain right and by an
equitable fiction, supposes him to have gained possession under it. 3 Bl. Com.
190; 18 Vin. Ab. 431; 7 Com. Dig. 234.
REMITTIT DAMNA. An entry on the record by which the plaintiff declares
that he remits the damages or a part of the damages which have been awarded him
by the jury, is so called.
2. In some cases, a misjoinder of actions may be cured by the entry of a
remittit damna. 1 Chit. Pl. *207.
REMITTOR, contracts. A person who makes a remittance to another.
REMITTITUR DAMNUM, or DAMNA, practice. The act of the plaintiff upon
the record, whereby he abates or remits the excess of damages found by the jury
beyond the sum laid in the declaration. See 1 Saund. 285, n. 6; 4 Conn. 109;
Bouv. Inst. Index, h. t.
REMITTUR OF RECORD. After a record has been removed to the supreme
court, and a judgment has been rendered, it is to be remitted or sent back to
the court below, for the purpose of re-trying the cause, when the judgment has
been reversed, or of issuing an execution when it has been affirmed. The act of
so returning the record, and the writ issued for that purpose, bear the name of
REMONSTRANCE. A petition to a court, or deliberative or legislative
body, in which those who have signed it request that something which it is in
contemplation to perform shall not be done.
REMOTE. At a distance; afar off, not immediate. A remote cause is not
in general sufficient to charge a man with the commission of a crime, nor with
being the author of a tort.
2. When a man suffers an injury in consequence of the violation of a
contract, he is in general entitled to damages for the violation of such
contract, but not for remote consequences, unconnected with the contract, to
which he may be subjected; as, for example, if the maker of a promissory note
should not pay it at maturity; the holder will be entitled to damages arising
from the breach of the contract, namely, the principal and interest; but should
the holder, in consequence of the non-payment of such note, be compelled to stop
payment, and lose his credit and his business, the maker will not be responsible
for such losses, on account of the great remoteness of the cause; so if an agent
who is bound to account should neglect to do so, and a similar failure should
take place, the agent would not be responsible for the damages thus caused. 1
Brock. Cir. C. R. 103; see 3 Pet. 69, 84, 89; 5 Mason's R. 161; 3 Wheat. 560; 1
Story, R. 157; 3 Sumn. R. 27, 270; 2 Sm. & Marsh. 340; 7 Hill, 61. Vide
REMOVAL FROM OFFICE. The act of a competent officer or of the
legislature which deprives an officer of his office. It may be express, that is,
by a notification that the officer has been removed, or implied, by the
appointment of another person to the same office. Wallace's C. C. R. 118. See 13
Pet. 130; 1 Cranch, 137.
REMOVER. practice. When a suit or cause is removed out of one court
into another, which is effected by writ of error, certiorari, and the like. 11
REMUNERATION. Reward; recompense; salary. Dig. 17, 1, 7.
RENDER. To yield; to return; to give again; it is the reverse of
RENDEZVOUS. A place appointed for meeting.
2. Among seamen it is usual when vessels sail under convoy, to have a rend
ezvous in case of dispersion by storm, an enemy, or other accident,
3. The place where military men meet and lodge, is also called a
RENEWAL. A change of something old for for something new; as, the
renewal of a note; the renewal of a lease. See Novation, and 1 Bouv. Inst. n.
TO RENOUNCE. To give up a right; for example, an executor may renounce
the right of administering the estate of the testator; a widow the right to
administer to her intestate hushand's estate.
2. There are some rights which a person cannot renounce; as, for example, to
plead the act of limitation. Before a person can become a citizen of the United
States he must renounce all titles of nobility. Vide Naturalization; To