Remedy “Legally” Defined

The following definitions for “remedy” are taken from Ballantine’s Law Dictionary (3rd edition), Bouvier’s Law Dictionary (6th edition), Black’s Law Dictionary (2nd edition), and Webster’s Dictionary (1828):

 

 

(Ballantine’s)

The means employed to enforce a right or redress an injury [Paulsen v. Remecke, 181 La 917, 160 So 629, 97 ALR 1184]. The means or method whereby a cause of action or corresponding obligation is effectuated and by which a wrong is redressed and relief obtained [Jewett v. City Transfer & Storage Co. 129 Cal App 556, 18 P2d 351]. The appropriate legal form of relief by which a remediable right may be enforced [Boner v. Haverty Furniture Co. 138 SC 74, 78, 136 SE 19]. Any remedial right to which an aggrieved party is entitled with or without resort to a tribunal [UCC §1-201 (34)].

 

(Bouvier’s)

  1. The means employed to enforce a right or redress an injury.
  2. The importance of selecting a proper remedy is made strikingly evident by the 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 the 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 filled, 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:
    • The enforcement of contracts, or
    • The redress of torts or injuries
  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.
  2. 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 to foreign judgments [4 T. R. 493; 3 East, R. 221; 11 East, R; 124; and on by-laws. 1 B. & P. 98].
  3. 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, A9]; 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].
  4. 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 pool, indenture, or whether it be express or implied by law from the terms of the deeds; or whether the damages be liquidated or unliquidated, the proper remedy is by action of covenant [Vide Covenant].
  5. For a 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 wonder, 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.).
  6. 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.
  7. There are three kinds of remedies, namely:
    • The preventative,
    • That which seeks for a compensation, or
    • That which has for its object punishment.
  1. The preventative, 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.
  2. Remedies for compensation are those which may be either by the acts of the party aggrieved, or summarily before justices, or by arbitration, or action, or suit at law or in equity.
  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].
  4. It will be proper to consider:
    • The private remedies, as, they seek the prevention of offences, compensation for committing them, and the punishment of their authors.
    • The public remedies, which have for object protection and punishment.
  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 Atl. 221; 8 M. & S. 71].
  2. Private remedies are:
    • By the act of the party, or by legal proceedings to prevent the commission or repetition of an injury, or to remove it; or,
    • They are to recover compensation for the injury which has been committed.
  1. The preventative 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 nusiances; 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].
  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].
  3. Public remedies: These may be divided into such as are intended to prevent crimes, and those where the object is to punish them.
    • 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 breach of the peace may be 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].
    • The proceedings intended as a punishment for offences, are either summary, vide Conviction; or by indictment (q. v.).
  1. 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].

 

(Black’s)

Remedy is the means by which the violation of a right is prevented, redressed, or compensated. Remedies of four kinds: (1) By act of the party injured, the principal of which are defense, recaption, distress, entry, abatement, and seizure; (2) by operation of law, as in the case of retainer and remitter; (3) by agreement between the parties, e.g., by accord and satisfaction and arbitration; and (4) by judicial remedy, e.g., action or suit [Sweet, See Knapp v. McCaffrey, 177 U.S. 638, 20 Sup. Ct. 824, 44 L. Ed. 921; Missionary Soc. v. Ely, 56 Ohio St. 405, 47 N. E. 537; U. S. v. Lyman, 26 Fed. Cas. 1,024; Frost v. Witter, 132 Cal. 421, 64 Pac. 705, 84 Am. St. Rep. 53].

Also a certain allowance to the mater of the mint, for deviation from the standard weight and fineness of coins [Enc. Lond].

 

  • Adequate remedy: see ADEQUATE
  • Civil remedy: the remedy afforded by law to a private person in the civil courts in so far as his private and individual rights have been injured by a delict or crime; as distinguished from the remedy by criminal prosecution for the injury to the rights of the public.
  • Cumulative remedy: see CUMULATIVE.
  • Extraordinary remedy: see EXTRAORDINARY.
  • Legal remedy: a remedy available, under the particular circumstances of the case, in a court of law, as distinguished from a remedy available only in equity [See State v. Sneed, 105 Tenn. 711, 58 S. W. 1070].
  • Remedy over: a person who is primarily liable or responsible, but who, in turn, can demand indemnification from another, who is responsible to him, is said to have a “remedy over.” For example, a city, being compelled to pay for injuries caused by a defect in the highway, has a “remedy over” against the person whose act or negligence caused the defect, and such person is said to be “liable over” to the city [2 Black, Judgem. § 575].

 

(Webster’s)

 

REM’EDY, n. [L. remedium; re and medeor, to heal].

  1. That which cures a disease; any medicine or application which puts an end to disease and restores health; with for; as a remedy for the gout.
  2. That which counteracts an evil of any kind; with for, to or against; usually with for. Civil government is the remedy for the evils of natural liberty. What remedy can be provided for extravagance in dress? The man who shall invent an effectual remedy for intemperance, will deserve every thing from this fellow men.
  3. That which cures uneasiness.
    • Our griefs how swift, our remedies how slow.
  1. That which repairs loss or disaster; reparation.
    • In the death of a man there is no remedy.
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