CHAP. I. REMEDIES, &c. Remedies of three descriptions, tion of any remedy, well to ascertain the public or private, legal or equitable, or ecclesiastical properties and qualities, as well of the right as of the injury to which the remedy is to be applied. Here we must distinguish between private remedies and those which are PUBLIC, and advert to the rules before noticed, viz. That for mere public injuries no individual can institute a private remedy, (b) although, by adopting a public criminal proceeding, he may frequently obtain private compensation, at least by leave of the Court, (c) and that where the right affected was merely equitable, an injury to it can in general be redressed only in a Court of Equity, and that ecclesiastical and spiritual injuries must be redressed in an Ecclesiastical Court. (d) It will be found that for most injuries which more or less affect a private right and a private individual, (although often Preventive, also affecting the public,) there are three descriptions of remedies Compensatory, or Punishments. or proceedings, and each of which again has its variety. The first are the preventive, or removing, or abating remedies, and 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 to keep the peace, or injunction in equity, &c.: secondly, remedies for compensation, which may be either by acts of the party aggrieved, or summarily before justices, or by arbitration, or action, or suit at law, or in equity, or in an Ecclesiastical Court: and thirdly, proceedings for punishment, or mixed of compensation and punishment, and either summary before magistrates, or by indictment, or criminal information, ecclesiastical censure, &c. If the injury were an unlawful capture or seizure of that nature, or constituting a breach of international law, then no action can be sustained in a municipal court, but the proceeding for redress must be in the Prize Court of the Admiralty, or before commissioners specially constituted by the King. (e) The wrong-doer in most cases of private injuries, (which also constitute public offences,) as batteries and libels, is liable both to an action at the suit of the party injured, and also to an indictment, (f) (though this is sometimes prohibited, (g)) and the Court in which the action is brought will not in general compel the plaintiff to elect, (h) though the Attorney-General may stay (b) Ante, 10. (d) Ante, 7, 8. (e) Elphinstone v. Bedreechend, Knapp's Rep. 316 to 361; and see Hill v. Reardon, 2 Sim. & Stu. 431; but see 2 Russ. R. 608, ante, 2, note (b). (f) Hawk. P. C. c. 62, s. 4. (g) 7 & 8 Geo. 4, c. 29, s. 70; Id. c. 50, s. 36; 9 Geo. 4, c. 31, s. 28; 1 & 2 W. 4, c. 32, s. 46. (h) 1 Bos. & Pul. 191. the public prosecution. (i) But a court and jury will in general consider the double proceeding vexatious, and the latter in that case will seldom give large damages. CHAP. I. REMEDIES. In some cases of public offences, but which have more imme- When private diately injured a private individual, as batteries and libels, if compensation is obtainable by the public remedy by prosecution be adopted, the court will compromising a sometimes permit a reference, (4) or allow the defendant, even tion. public prosecuafter conviction, to speak (as it is termed) with the prosecutor before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) will be inflicted, if the prosecutor declare himself satisfied, or if, in other words, an adequate apology or compensation has been made; (7) and where the defendant was convicted on an indictment for ill treating a parish apprentice, and at the recommendation of the Court of Quarter Sessions gave security for the fair expenses of the prosecution, upon an understanding that the court would abate the period of his imprisonment, the security was held to be legal and binding. (m) So upon summary proceedings before a magistrate, (as for petty larcenies or injuries to personal or real property,) he is sometimes authorized to discharge the offender from a conviction, upon his making such satisfaction to the party aggrieved for damages and costs, or either, as shall be ascertained by the justice. (n) But it should seem that this permission does not extend to felonies. (o) By leave, therefore, of the court, some public prosecutions may be allowed to enforce civil compensations for the private injury. But it should seem that a compromise of an indictment for a public misdemeanor and private satisfaction cannot take place without the sanction of the court, (p) and that the same rule would extend to an indictment for a common battery or libel. (q) But at least a bond conditioned to discontinue a public nuisance is valid. (r) By the ancient common law, and by the older statutes, re- The occasion medies were divided and distinguished as private or public, and for, and intro (1) Burn's J. tit. Nolle Prosequi. (k) See post, and Burn's J. tit. Award; 1 J. B. Moore, 120: 7 Taunt. 422; 9 East, 497. (1) 4 Bla. C. 363, 4.; 1 Moore, 120. See Elworthy v. Bird, 2 Sim. & Stu. 372. But see 1 Dow. Rep. New S. 519, overruling that case as to the effect of a covenant between husband andwife to separate. (m) 11 East, 46. (n) 7 & 8 Geo. 4, c. 29, s. 63; and chap. 30, s. 34. (0) Elworthy v. Bird, 2 Sim. & Stu. 372. (p) 5 East, 294; 1 Smith, 515; Burn's J. 26 ed. tit. Award. (q) Rex v. Rant, Kyd on Awards, 64; and see 2 Bing. 258; M'Clel. R. 69; 2 Dowl. & Ry. 265; 7 Taunt. 422; sed quare. see Elworthy v. Bird, 2 Sim. & Stu. 372; that an indictment for a misdemeanor may be compromised, though not an indictment for felony, Westmeath v. Westmeath, 1 Jac. Řep. 126. where speci fic performance of an agreement for sepa ration of husband and wife was decreed, though the agreement provided for the compromise of an indictment for an assault. (r) 7 T. R. 475. duction of, summary proceedings. CHAP. I. REMEDIES. I. PRIVATE General rules. each were either at law or in equity, or ecclesiastical or spiritual. The first were to be pursued in the temporal common law civil courts; the second in the public criminal courts; the third in courts of equity; and the fourth and fifth in certain ecclesiastical or spiritual courts. Formerly, the trial or investigation of private remedies in the common law courts, and of public crimes and offences in criminal courts, were principally, if not entirely, by jury; then considered the only constitutional mode of investigating disputed facts. But as society enlarged, and the expenses of litigation increased, innovations were gradually introduced on that mode of deciding upon facts. Inferior Courts of Requests (commonly termed Courts of Conscience) were instituted for the purpose of determining small debts, where the claimant is allowed to substantiate his demand by his own oath; and in cases of petty offences and misdemeanors, a most extensive jurisdiction has been gradually given and extended to magistrates and others, enabling them to decide upon facts civil as well as criminal, which must in former times have been determined by a jury, and in superior courts. But now, justices, who, by the terms of their commission, formerly had jurisdiction only over crimes and breaches of the peace, have, in almost all cases of petty offences and torts, unconnected with contract, (and, indeed, in some cases even of contract of an inferior nature, as between masters and apprentices and masters and servants in certain trades, and between members of friendly societies, and in fixing the amount of salvage, &c.) been invested with jurisdiction quite foreign to their original institution, and they have been clothed with powers to hear and determine, combining the several functions and powers of a judge and jury and a court of equity. So that summary jurisdiction without trial by jury is now extended to almost every small injury or dispute that can usually arise between members of society. On the one hand, this is great saving of expense to parties, but upon the other, magistrates are invested with jurisdiction which might, in some cases, be very injuriously exercised. Keeping in view these extensions and introductions of new remedies, we will now proceed to state the general rules which affect the ancient as well as modern remedies for private injuries, strictly so called, and those which, though nominally public, yet more particularly affect one or more individuals, and which may be resorted to by them in lieu of a civil remedy. It is a general rule that when the right and injury were merely private, then no one can interfere or seek or prosecute a remedy but the party immediately injured; nor can others, excepting professional advisers, instigate or encourage their prosecution, without being guilty of the offence of barretry, or maintenance, or champetry. (s) But on the other hand, if the remedy be even nominally public, and prosecuted in the name of the King, then any one, though not privately injured, may institute or continue the prosecution. (t) Private remedies are either by act of the party, or by legal proceedings, to prevent the commission or repetition of an injury, or to remove it; or they more frequently are to recover, by summary proceeding, or by action or suit, compensation for the completion of an injury. CHAP. I. REMEDIES. and removing The preventive remedies are more numerous than usually First. Preventive supposed, but they are not so frequently resorted to as might Remedies. be advisable, (u) which may be attributed to the ignorance of First. By par their existence until it is too late to resort to them, or to the ty's own act. hazard of their being mistaken, and subjecting the party to an action for his irregularity, or to the preference given to a more formal and expensive proceeding. It has been frequently observed, that "Laws for prevention are better than laws for punishment.” (x) The preventive and removing remedies are principally of two descriptions, viz. first, those by act of the party himself, or of certain relations or third persons permitted to interfere, as with respect to the person, by self-defence, resistance, escape, rescue, and even prison breaking, in case of imprisonment clearly illegal; or in case of personal property, by resistance or re-caption; or in case of real property, by resistance or turning a trespasser out of his house or off his land, even with force; (y) or by apprehending the wrong-doer, or by re-entry and regaining possession, taking care not to commit a forcible entry or breach of the peace; (≈) or in case of nuisances, private or public, by abatement; (a) or remedies by distress for damage feasant, or for rent, or for heriot, &c., or by set-off or retainer. By these and various other remedies, in which a party, as it is vulgarly termed, takes the law into his own hands, he may frequently avoid proceeding by action, which, especially in the instance of actions of ejectment, are too frequently unnecessarily resorted to. (b) (3) 4 Bla. C. 134, 5. 13 b. (y) 2 Salk. 641; Co. Lit. 257; 1 Saund. (t) 1 Salk. 174; 1 Atk. 221; 3 M. & 81, 140, note 4; 8 T. R. 78, 357. Sel. 71. (u) Ante, Preface. (1) See Wilcock v. Windon, 3 Bar. & Adol. 43; and Venegan v. Attwood and others, 1 Mod. 202. (a) 2 Smith's R. 9, (b) See 1 Bing. R. 158; 1 Man. & Ry. 220; 7 T. R. 431; 1 Price, 53; 3 Bing. 11. CHAP.I. REMEDIES. It has been properly suggested that there is frequently danger in persons availing themselves of remedies by their own act, because, by mistake or otherwise, they by so acting may expose themselves to the risk of being subject to an action for irregularity. This risk, however, is in a great measure provided for by modern acts requiring notice of action before they can be sued, and enabling them to tender amends, or even to pay the amount into court, in case a tender before action has not been made. Thus the modern acts against larceny and petty offences of that nature, and against wilful or malicious injuries to personal and real property, enable the owner of the property, or his servant, or any other person authorized by him, to apprehend the person found committing any offence punishable by indictment or summary conviction by virtue of the acts; and it is enacted, that all persons acting in pursuance of the acts, (and which term is construed to mean bonâ fide acting under colour thereof, though erring by mistake, (c)) shall have notice of action, and may tender sufficient amends, or pay the same into court; (d) and the game act contains a similar enactment; (e) consequently there is not much risk of expensive litigation by a party thus acting for himself. There is, however, one general caution to be observed before the adoption of some of these remedies by act of the party, that a party who has availed himself of such summary proceeding cannot also afterwards proceed by action. Thus, if a party abate a nuisance by his own act, and without waiting the judgment of law quod prosternavit, he is not entitled also to proceed by an action, (f) for although he hath his choice of two remedies, either by abating it himself by his own mere act and authority, or by suit, in which he may both recover damages and remove it by the aid of the law, he hath not both, and having made his election of one, he is totally precluded from resorting to the other. (g) Hence it should seem that when a party has already sustained any considerable damage worth suing for, it is better to proceed by action for compensation than to abate the nuisance. (h) |