CIVIL REMEDIES.

INTRODUCTORY CHAPTER.

§ 1. By far the greater portion of any actual system of jurisprudence consists of commands that create and define those rights and corresponding duties which control the normal relations of individuals with each other and with the body politic of which they are members. Some of these rights and their corresponding duties govern the relations alone of the state with individuals, and are properly termed public; the others are confined to the relations of individuals with each other, and are called private. As these rights and duties form the very substratum of the whole law, as the law and all the machinery of administration exist solely to declare and enforce them, as they are in fact the very end and object of legislation and government, they may be and are by most juridical writers appropriately styled primary rights and duties. If mankind were absolutely perfect so that disobedience would be impossible, if it were certain that every command uttered by the Supreme Power would be voluntarily obeyed by those to whom it was addressed, the law would contain nothing else than an enumeration of these primary rights and duties. Since, however, disobedience is possible, and these primary rights may be broken and duties unperformed, a supplemental branch of the law becomes a matter of necessity, by which obedience may be enforced. This secondary and supplementary department is by some writers called the "sanctioning," because it deals with the sanctions which give their compulsive efficacy to the commands of the supreme power. I shall, however, use the term remedial as descriptive of this department, since it

more nearly accords with the nomenclature customary among lawyers in England and in America.

§ 2. This secondary and supplementary or remedial department of jurisprudence has to do with remedies and with remedial rights and duties. Remedies, in their widest sense, are either the final means by which to maintain and defend primary rights and enforce primary duties, or they are the final equivalents given to an injured person in the place of his original primary rights which have been broken, and of the original primary duties towards him which have been unperformed. Remedial rights, or rights of remedy, are rights which an injured person has to avail himself of some one or more of these final means, or to obtain some one or more of these final equivalents. Remedial duties are secondary duties, devolving upon the party who has infringed upon the primary rights of another, and failed to perform his own primary duties towards that other, to make the reparation provided by some one or more of these final means, or furnished in some one or more of these equivalents. One or two familiar and simple examples will illustrate and explain these abstract definitions. A. and B. have entered into a contract by which the latter has agreed to sell and deliver to the former a quantity of merchandize: analyze the results of this relation. A. has the right that B. should transfer and deliver to him the goods referred to, and a corresponding duty rests upon B. to make the transfer and delivery. This right and this duty are primary. B. fails to perform, and thereupon a new secondary right in A. arises, and a new secondary duty of B. A.'s new right is to have the remedy which the law permits in such a case, and B.'s new duty is to grant this remedy; this new right and this new duty are remedial. The remedy given under such circumstances is a pecuniary compensation, a sum of money in the place of the goods, which in our legal nomenclature is termed damages. In this instance the remedy is plainly an equivalent. A.'s primary right was to acquire the ownership and the possession of the corpus of the goods; B.'s primary duty was to transfer the ownership and possession of that corpus. The remedy, however, is not the ownership and possession of the merchandize, but the ownership and possession of a sum of money instead thereof. It is a moral and indirect means of enforcing the primary right, because it may induce B. to perform his primary duty

and deliver the goods; but, if it does not produce that effect, it is an equivalent for the ownership and possession of the articles themselves. In this instance we have a given primary right and duty, a breach thereof by non-performance, a new remedial right and duty in the place of the primary ones, and a remedy different from but equivalent to those originals. This familiar example illustrates every case of remedy by a pecuniary compensation in the place of the primary right and duty which have been broken. Another example will be sufficient. A. and B. have entered into a contract by which the latter has agreed to convey a certain farm, and to execute and deliver a deed thereof to the former. Here A.'s primary right is to have B. convey the farm, which is done by executing and delivering the, deed and by surrendering possession of the land. B.'s corresponding primary duty is to perform these acts. Upon B.'s refusal, A. is at once clothed with a new and remedial right, and B. is subjected to a new and remedial duty. Under these circumstances the law gives a remedy which is the same as the end which was to be attained by the primary right and duty themselves; that is, the conveyance of the land. In other words, the law will compel B. to do just what he in terms contracted to do, execute and deliver the deed and surrender the possession. Here the secondary, remedial right and duty are the same as the original primary right and duty; and the remedy itself is not an equivalent to, but is identical with, the result to be reached by such primary right and duty. The remedy, however, is plainly a means by which A. maintains his primary right, and enforces the primary duty which B. owes to him, for by it the self-same right is upheld, and the self-same duty is performed.

§ 3. When the primary rights and duties are public, that is, when they govern the relations alone of the State with individuals, the remedies for the violation thereof are public, and the larger portion of them are criminal. When the primary rights and duties are private, that is, when they are confined to relations of individuals with each other, the remedies are also private, or, as they are frequently termed, civil. This treatise will deal with the latter class alone. The vast majority of public remedies are designed to preserve the good order of society, and to enforce those duties of individuals towards the State whose violations are called crimes, and the remedies themselves are

criminal but there are other public remedies which are not in any respect criminal.. The remedies to which I now refer may, at first blush, appear to be private, and to be used to enforce some rights that belong to an individual rather than to the body politic; yet, on closer examination of their elements and objects, it will be plainly seen that they are strictly public, and serve to uphold rights which inhere in the Commonwealth. The subdivision which I am thus describing includes those judicial proceedings by which the regular organization and structure of the government are preserved by determining the conflicting claims of litigant parties to occupy and hold the powers and functions of some particular public office. The individual who is, or who claims to be, a portion of the governmental organism, by virtue of an official position which he seeks to establish, may be an actor in the judicial proceeding; but the proceeding is not instituted, nor is the determination made, on his own personal account, nor for his own private benefit; the State is in theory and in practice the party primarily interested, and the rights of the State are maintained and established by the judicial decision. On the other hand, certain remedies which have the outward appearance of being public, which are required by some ancient and arbitrary rule of form to be brought in the name of the Commonwealth or of the people, are actually private and civil. The interposition of the State as a nominal actor is merely formal, and the rights to be upheld belong to individuals in their private characters and capacities. Remedies and remedial rights of this last class, being strictly private and civil, fall within the scope of the present work, while those of the preceding class are not embraced within its design.

§ 4. I shall in this Introductory Chapter state and explain the general plan of the following treatise upon the Civil Action of the reformed American System of Procedure, and upon the Remedies which may be obtained and the remedial rights which may be secured by its means. For purposes of convenience, and to exhibit the sequence of thought in the clearest possible manner, the prefatory matter will be separated into subdivisions or sections, each embracing a single topic. As a preliminary to the purposes thus stated, a rapid sketch and general outline of the system which prevailed prior to the reformatory legislation of New York and of other States will be necessary.