INDICTMENT; FELONY; MERGER; TORTS; CIV IL REMEDY.
Remedies are preventive which seek com "ensation, or which have for their object punishment. The preventive, or removing, or abating remedies 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, defense, resistance, recaption, abatement of nuisance, and surety of the peace, or injunc tion in equity, and perhaps some others. Remedies for compensation may be either by the acts of the party' aggrieved, or summa rily before justices, or by arbitration, or ac tion, or suit at law or In equity. Remedies which have for their object punishments or compensation and punishments are either summary proceedings before magistrates, or indictment, etc.
Remedies are specific or cumulative: the former are those which can alone be applied to restore a right or punish a crime: for ex ample, where a statute makes unlawful what was lawful before, and gives a particular remedy, that is specific, and must be pur sued, and no other ; Cro. Jac. 644; 2 Burr. 803. But when an offence was antecedently punishable by a common-law proceeding, as by indictment, and a statute prescribes a par ticular remedy, there such particular remedy is cumulative, and proceedings may be had at common law or under the statute; 1 Saund. 134, n. 4.
In a very large number of cases there are concurrent remedies the resort to one of which does not bar the other. This is par ticularly true where there is a legal and an equitable remedy with respect to the same subject-matter. For example, a bill in equi ty against the holder of a note to recover possession of it, and against makers for the balance due on it, may be maintained, pend ing an action at law against the holders and makers to recover from the latter the bal ance due ; and where the action at law fail ed on the ground that the plaintiffs were not In possession, the judgment did not bar the proceeding in equity ; New England Trust Co. v. Packing Co., 166 Mass. 46, 43 N. E. 928.
The maxim ubi jus ibti remedium has • been considered so valuable 'that it gave occasion to the first invention of that form, of action called an action on the case; 1 Sm. Lead. Cas. 472. The novelty of the particular com plaint alleged in an action on the case is no objection, provided there appears to have been an injury to the plaintiff cognizable by law : Term 63: 2 M. & W. 519.
There is an important distinction to be considered In connection with the construc tion and effect of statutes, between those which create rights, and those which afford remedies. This distinction has an important effect upon the legislative power, with respect to many subjects constantly Involved in tne question whether an act Is obnoxious to the provision of the federal constitution against Impairing the obligation of contracts, under which title the subject is discussed and to which reference should be made. The dis tinction is also important In many questions merely of state legislation. "The remedies which one legislature may have prescribed for the redress of private wrongs, a subse quent legislature can change or modify at pleasure, and make the new remedy applica ble to pending controversies, provided a sub stantial or adequate remedy is left, and pro vided, further, that the legislature is not pro hibited from making the new remedy applica ble to pending suits by some provision of the organic law. . It is true that the courts have, on some occasions, refused to apply statutes which dealt with the remedy for the redress of private grievances to ex isting controversies, and have held them solely applicable to actions thereafter brought. But it will be found, we think, on an examination of most of this class of eas es, that the refusal to apply to existing suits statutes which were plainly applicable there to, and which merely changed or modified the course of procedure, was based either on the ground that, if so applied, they would operate unfairly, and cause loss or inconven ience to the parties, or on the ground that the right involved had become so far estab lished by acts done and performed in reli ance on the prior law, and its continuance in force, that it would savor of injustice to take away such right by making the new law ap plicable to the pending controversy ;" Camp bell v. Min. Co., 83 Fed. 643, 27 C. C. A. 646, where it was held that a statutory right to two trials in ejectment may be taken away by the legislature as to pending suits.
See RETROSPECTIVE; Ex POST FACTO LAW; ELECTION OF REMEDIES.