man may not be misled by confusing the ordinary English use of the words with the legal signification.

§ 25. Equity in the Legal Sense

In England many years ago the proceedings at law had become so cumbersome and so limited in scope that it was difficult to obtain justice in the courts of common law. King Henry VII then provided that in those cases in which the common law did not afford a remedy, relief could be obtained by applying directly to his chancellor. This official, who was also a dignitary of the church, favored the Roman or civil law and adopted a procedure founded on that law in contradistinction to the common law. Such a procedure before the chancellor was called a suit in "chancery" or "equity,” as distinguished from the procedure "at common law" or simply "at law." It should be noted, however, that while at first it was simpler to bring a suit in equity than at law, this distinction soon vanished and equity proceedings became even more complex and technical than the procedure at law. The chancellor, however, gave relief in many cases for which the common law gave no remedy. The common law was adapted to a simple life and a crude social system. As the English people advanced the deficiencies of the common law were manifest and the introduction of the courts of equity was a long step in legal reform. The two distinct systems both continued; the procedure was different, the rules were different, and the relief given was different. The lawyers who practiced before the chancellor were called solicitors; the lawyers who appeared in the common law courts were counselors or barristers.

In equity the remedies are different from those provided by a suit at law. To illustrate the difference, if anyone breaks down your fences and makes a road across your property, at law you can sue only for damages; in equity you can ask an

injunction restraining the offender from further trespass, and also recover for any damage he may have done.

§ 26. Suits at Law and in Equity

The distinction between law and equity was brought to this country and as a result there are in all the states the two divisions of the work of the courts and the two methods of bringing suit. In a few states the law and the equity courts are kept entirely separate, as is the case in New Jersey; and in these states the public realizes more readily the real difference between law and equity administration. But in most states today, the actions are brought in the same courts, the only differences being in the preliminary procedure, in the remedies which the courts grant, and in the fact that in most cases at law there is a jury trial, while in equity cases a judge or judges alone hear the case.

A court of law hears both civil and criminal cases. Civil cases are the ordinary suits about contracts and property rights and are brought by private parties against other private parties. Criminal cases are suits brought by the state itself against those who are accused of having broken the law, and who are punishable by fine or imprisonment. In such a case the fine goes to the state. (See Chapter V.)

A court of equity hears only civil cases. If a person is interfering with another's rights, a court of equity will grant an injunction forbidding him to do so in the future, and will at the same time make him pay damages to the injured party for the wrong which has already been done.

§ 27. Bringing a Suit at Law

When A refuses to pay a debt that is due, or fails to do what he has contracted to do, or by his negligence or wrongdoing has caused damage to B, if B wishes to bring suit against A he employs a lawyer who prepares a written statement

setting forth his client's cause of action.

This paper is called

At the same time

a complaint and must be served upon A. with or before the service of the complaint, B must serve a notice or summons on A requiring him to answer within a certain number of days. If A does not appear, the court will consider that A does not mean to defend and, in some instances, if the claim is definite, it will grant a judgment by default against A and in favor of B, without a trial or anything more than a sworn complaint to prove the case.

Service of a summons must be made personally upon a defendant except:

I.

2.

3.

Where the person is an infant, it may be delivered to a parent or guardian.

Where the person is adjudged insane or incompetent to manage his own affairs, it may be delivered to a guardian or to the defendant.

Where a person, firm, or corporation is without the state, summons may be served by publication of the summons in two newspapers, most likely to be seen by the defendant, for a specified time of not less than once a week for six successive weeks. (The details given are for publication in New York. They vary in the different states.)

The party bringing the action is called the "plaintiff," or in some states the "complainant." The party against whom the action is brought is called the "defendant." If the defendant does not wish to allow judgment to go against him by default, he or his lawyer must within the time set serve an answer to the other party's complaint against him. In this paper the defendant usually brings forward any cause of action which he may have against the other party. This is called a counterclaim. The written papers by which the parties bring their cause before the court are called "pleadings." If the

defendant denies the facts alleged or sets up a counterclaim, the pleading is called an answer.

The other party then replies to the counterclaim. There may in some states be several such replies after the service of the complaint. The procedure depends on the law of the particular state where the action is being brought. Each party must serve a copy of each paper in the action on the other party or his attorney.

If what has been stated in the complaint does not make a legal cause of action, the defendant through his lawyer may object to it by filing a demurrer. A demurrer objects to the complaint on legal grounds; for example, that it is not brought in the right court, or that the facts alleged, even if true, do not constitute a cause of action.

Then the matter of the demurrer comes up before the court. It is argued by the lawyers on each side, and if the court decides that the demurrer presented by the defendant is well taken, the complaint is dismissed. The plaintiff can then usually get leave (by paying the costs up to date) to file a new complaint in which his lawyer will try to avoid the particular legal difficulty.

If the court decides, however, that the demurrer is not well taken, it is dismissed, and this leaves the defendant to answer the complaint as to the facts, that is, as to the matters which have been alleged on the part of the plaintiff and denied on the part of the defendant.

The foregoing statement of proceedings before trial presupposes very simple proceedings, but usually there are requests to amend and much incidental procedure, which tend to delay the trial of the main issue.

§ 28. Trial at Law

When the parties have finally come to an issue, i.e., when the plaintiff has alleged certain things and the defendant has

denied them or has interposed a defense, then the case is set down for trial, and takes its place on the court calendar. When cases that are ahead of it on the calendar have been tried, or postponed, the case is called, and the lawyers on each side are asked if they are ready. When both sides are ready, or have no excuse for longer delay, a jury is assembled and the judge proceeds with the case. In a court of law a party has a right to have a jury decide any disputed facts.

The witnesses for each side are sworn and testify, then the case is argued by counsel for each party and goes to a jury to decide or is decided by the judge, or is taken under advisement by the judge, who will give his decision after due consideration. If the case goes to a jury, the jurymen are placed in the custody of a court officer until they reach a decision or find that they cannot agree. If the judge is to decide the case and takes it under advisement, it may be days, weeks, or months before he will render his decision.

Since a jury is composed of human beings, it is likely to show certain very human characteristics in its decisions. The sympathies of the jury are usually with the under dog, whether he is plaintiff or defendant. Often the plaintiff, by the mere fact of going to court with his troubles and then by being heard first, has the better chance. If one party is a corporation, the jury is inclined to regard it as a soulless oppressor, and to award damages in favor of the poor workingman, widow, etc., whom the corporation is supposed to be injuring.

Very frequently clever and unscrupulous lawyers get in some touch to appeal to the sympathies of the jury, as a photograph of an injured man's wife and children, etc. These are usually ruled out by the court, but the effect on the jury has been gained just the same. It is to be remembered that if one man on the jury is stubborn, prejudiced, or dishonest, he can prevent a verdict and the whole expense and trouble of the trial has to be repeated. The law frequently breaks down in