Legal remedy

“ The law only gave you the right to proceed against him to recover money damages for the legal injury. A court of equity has a preventive remedy. If one threatens to fill up your well you can petition or pray the court to order that he shall refrain until there has been a legal hearing to determine whether he has any right to do so and the court will order him to desist until it has heard the case, and will enforce its order with a fine or penalty should he disobey. ”

“ The existence of a remedy for wrongful death has become almost a postulate of our legal system, though the remedy was generally provided by legislation rather than by the decisional law. It is against this background that the federal law must look for an appropriate remedy to enforce its duties in a complete and rational way. ”

“ Where a party, if his theory of the controversy is correct, has a good defense at law to 'a purely legal demand,' he should be left to that means of defense, as he has no occasion to resort to a court of equity for relief, unless he is prepared to allege and prove some special circumstances to show that he may suffer irreparable injury if he is denied a preventive remedy.'
To the same effect are Home Ins. ”

“ The suit in this case being one in equity to enforce a common-law remedy, the state courts were correct in assuming jurisdiction.'
The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. ”

“ Rep. 87, 43 N. Y. S. 832; Cohen v. N. Y. Mutual Life Ins. Co., 50 N. Y. 610, 625, 10 Am. Rep. 522. Nor is it essential that only established and generally recognized forms of remedy should be invoked. ”

“ IT is because rights exist and because they are sometimes violated that remedies are necessary. The object of all remedies is the protection of rights. Rights are protected by means of actions or suits. The term “remedy” is applied either to the action or suit by means of which a right is protected, or to the protection which the action or suit affords. ”

“ Ordinarily, where it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter, the objection of the adequacy of the remedy at law should be taken at the earliest opportunity and before the defendant enters upon a full defense. ”

“ All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. ”

“ In regard to property, the remedy for injuries lies against the immediate perpetrators, who may be sued, and cannot shelter themselves under any imagined immunity of the government from due responsibility. ”

“ I can find no authority for the broad claim that the 'right of a common-law remedy' extends to any and all means other than proceedings in rem which may be employed to enforce rights or redress injuries, including remedies in pais as well as proceedings in court, those conferred by statute as well as those existing at common law. ”

“ The distinction between criminal and civil wrongs is based 74not on any difference in the nature of the right infringed, but on a difference in the nature of the remedy applied.
The plausibility of the theory in question is chiefly attributable to a certain peculiarity in the historical development of the administration of justice. Where the criminal remedy of punishment is left in the hands of the individuals injured, to be claimed or not as they think fit, it invariably tends to degenerate into the civil remedy of pecuniary compensation. ”

“ If this is a correct view of the case, it is plain that the only equitable remedy applicable to it is a bill for relief from the condition, or for specific performance. Both of these remedies, as we have seen, have been lost by the laches of the complainant. ”

“ So in the civil law, the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable; and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available. ”

“ The principle, that the law will furnish a remedy to a party injured by the neglect or non-performance of a duty imposed on an individual by statute, where the statute itself furnishes no remedy, is too familiar and well established to need the support of authorities. If the statute which imposes a new duty also provides a particular remedy, that remedy is usually the only remedy the injured party has. ”

“ In the exercise of that power and to satisfy a public need, a state may choose the remedy best adapted, in the legislative judgment, to protect the interests concerned, provided its choice is not unreasonable or arbitrary, and the procedure it adopts satisfies the constitutional requirements of reasonable notice and opportunity to be heard. ”

“ There are numerous cases where a contract incapable of enforcement for want of a remedy, or because there is some obstruction to the remedy, can be so aided by legislation as to become the proper ground of a valid action; as in the case of a physician, practicing without license, who was forbidden to compel payment for his service by suit. ”

“ He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once ... ”

“ An action may protect a right in three ways, namely, by preventing the violation of it, by compelling a specific reparation of it when it has been violated, and by compelling a compensation in money for a violation of it. The term “remedy” is strictly applicable only to the second and third of these modes of protecting rights; for remedy literally means a cure,—not a prevention. As commonly used in law, however, it means prevention as well as cure; and it will be so used in this paper. In equity the term “relief” is commonly used instead of “remedy;” ”

“ Spratt v. Hobhouse, 4 Bing. 178; Israel v. Douglas, 1 H. B1. 239; beardsley v. Root, 11 Johns. 464; Hall v. Marston, 17 Mass. 575; Claflin v. Godfrey, 21 Pick. 1. The remedy at law is adequate and complete. ”

“ If a resort to a judicial proceeding to collect it is deemed expedient, there remains to the court all the ordinary means of enforcing its judgment-executions, sequestration, and any other appropriate remedy in chancery. ”

“ There are many cases where right and remedy are so united that the right cannot be enforced except in the manner and before the tribunal designated by the act. For the rule is well settled that 'where the provision for the liability is coupled with a provision for the special remedy, that remedy, that alone, must be employed.' Pollard v. ”

“ In non-English European systems care is taken to prevent civil remedies from being extinguished by punishment: it is quite usual for the civil and criminal remedies to be pursued concurrently, the individual appearing as partie civile and receiving an award of compensation by the judgment which determines the punishment to be inflicted for the offence against the state. ”

“ Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. ”

“ If the law afford him an imperfect relief, his remedy is by application to Congress for additional legislation, and not to the judicial power for a strained interpretation of the law already in force. ”

“ In later times, a criminal remedy to meet the graver crimes gradually grew up by the side of the civil, and in the time of Justinian the criminal remedy, where it existed, took precedence of the civil (Cod. iii. 8. 4) . ”

“ Common-law remedies in cases of tort, as given in common-law courts, and suits in personam in the admiralty courts of this country, bear a strong resemblance to each other in respect to parties, and the effect of a recovery by the injured party against one or all of the wrong-doers, and the extent of redress to which in innocent party is entitled against the wrong-doer. ”

“ Let the law be as follows:—He who by the use of poison does any injury not fatal to a man or his servants, or any injury whether fatal or not to another's cattle or bees, is to be punished with death if he be a physician, and if he be not a physician he is to suffer the punishment awarded by the court: and he who injures another by sorcery, if he be a diviner or prophet, shall be put to death; and, if he be not a diviner, the court shall determine what he ought to pay or suffer. ”

“ In order to maintain an action for an injury to the person or to movable property, some courts have held that the wrong must be one which would be actionable by the law of the place where the redress is sought, as well as by the law of the place where the wrong was done. ”

“ Globe, 42d Cong., 1st Sess., App. 49-50.↑ 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State * * * to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * shall be fined not more than $1,000 or imprisoned not more than one year, or both.'↑ Civil liability has always been drawn from such indefinite standards as reasonable care, a man of ordinary prudence, foreseeability, etc. ”

“ The primary relief sought is an injunction to put an end to an essentially single wrong, however differently characterized, not to enjoin distinct wrongs constituting the basis for independent causes of action.' See Behrens v. ”

“ Though this remedy will not be withheld, merely because the title of the complainant may admit of a doubt, or be open to litigation, there must be a clear case made out of impending danger, requiring prompt action to save an apparent right from destruction. ”

“ We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. ”

“ Determining whether common-law procedures for awarding punitive damages can deny "due process of law" requires some inquiry into the meaning of that majestic phrase. Its first prominent use appears to have been in an English statute of 1354: " [N] o man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law." ”

“ Action in a court of equity, however, will give relief for cases not provided for in law. Example: One may obtain an order from the court restraining a neighbor from injury, when the law itself gives only the right to recover damages for injury done. ”

“ There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,' 'reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. ”

“ Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? ”

“ Or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof, and charge therefor, directly or indirectly, money or other compensation.' By § 14 any person practising medicine in violation of the act is punished by fine and imprisonment, and is not to recover anything for the services rendered. ”

“ There it was asserted that by the universal principles of the common law, as well as of the local laws of the states, no right to recover for a wrong committed could be enforced in favor of one who had himself contributed to the producing cause of the injury. ”

“ That where a state law, statutory or customary, gives to the citizens of the state, in an action or suit inter partes, the right to question at law the probate of a will or to assail probate in a suit in equity, the courts of the United States, in administering the rights of citizens of other states or aliens, will enforce such remedies. ”

“ The limitation of a prescription generally taken is from the time that no man's mind runs to the contrary.
19. Assigns may be made upon lands given in fee, for term of life, or for term of years, though no mention be made of assigns; and the same law is of a rent that is granted; but otherwise it is of a warranty, and of a covenant.
20. He who recovers debt or damages in the King's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. ”

“ For a long time those in protection of the legal and medical professions have been on the statute-books, if not always in force. But, as always happens, these bad precedents have been used as arguments in favor of the plumbers, barbers, dentists, druggists, and other trades and professions. ”