REMAINDER-MAN. One who is entitled to the remainder of the estate after a particular estate carved out of it has expired.
TO REMAND. To send back or recommit. When a prisoner is brought before a judge on a habeas corpus, for the purpose of obtaining his liberty, the judge hears the case, and either discharges him or not; when there is cause for his detention1, he remands him.
REMANDING A CAUSE, practice. The sending it back to the same court out ofwhich it came for the purpose of having some action on it there. March, R. 100.
REMANENT PRO2 DEFECTU EMPTORUM, practice. The return made by the sheriff to a writ3 of execution when he has not been able to sell the property seized, that the same remains4 unsold for want of buyers: in that case the plaintiff is entitled to a venditioni exponas. Com. Dig. Execution, C. 8.
REMANET, practice. The causes which are entered for trial, and which cannot be tried during tho term, are remanets. Lee's Dict. Trial, vii.; 1 Sell. Pr. 434; 1 Phil. Ev., 4.
REMEDIAL. That which affords a remedy; as, a remedial statute5, or one which is made to supply some defects or abridge6 some superfluities of the common law. 1 131. Com. 86. The term remedial statute is also applied7 to those acts which give a new remedy. Esp. Pen. Act. 1.
REMEDY. The means employed to enforce a right or redress8 an injury.
2. The importance of selecting a proper remedy is made strikingly evident by tho following statement. "Recently a common law barrister, very eminent9 for his legal attainments10, 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 equity11, 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 proceedings13 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 residue14 into France, and the creditor15 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. - §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 briefly16 considered, each separately.
5. - 1. The breach17 of parol or simple contracts, whether verbal or written, express or implied, for the payment of money, or for the performance or omission18 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 duress19 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 wagers20, feigned21 issues, and awards when the submission22 is not by deed, and to recover money due on foreign judgments23; 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 unpaid24 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 statutes25 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, indenture27, or whether it be express or implied by law from the terms of the deed; or whether the damages be liquidated28 or unliquidated, the proper remedy is by action of covenant26. Vide Covenant.#p#副标题#e#
8. - 4. For the detention of a cliattel, which the party obtained by virtue29 of a contract, as a bailment30, or by some other lawful31 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 conversion32. (q. v.)
9. - §2 . Remedies for the redress of injuries. These remedies are either public, by indictment33, when the injury to the individual or to Iiis 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 abating34 remedies, are those which may be by acts of the party aggrieved35, or by the intervention36 of legal proceedings; as, in the case of injuries to the. person, or to personal or real property, defence, resistance, recaption, abatement37 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 magistrates38, 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 merged39 in the public crime that no action can be maintained for it, at least until after the public prosecution40 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 interfere41 or seek a remedy except the party immediately injured and his professional advisers42. But when the remedy is even nominally43 public, and prosecuted44 in the name of the commonwealth45, any one may institute the proccedings, although not privately46 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 imprisonment47 is clearly illegal; or in case of personal property, by resistance or recaption; or in case of real property, resistance or turning a trespasser48 out of his house or off his land, even with force; 1 Saund. 81, 140, note 4; or by apprehending49 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 distress50, (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 regaining51 possession by applying to magis-trates against forcible entry and detainer, where the statutes authorize52 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 equitable53 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 preven-tive remedies may be exercised without any warrant either by a constable54, (q. v.) or other officer, or even by a private citizen. Persons in the act of committing a felony or a broach55 of the peace may arrested by any one. Vide Arrest. A public nuisance may be abated56 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 cumulative57; 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 proceeding12, 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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