Folk-moot, and so it is in most civilized countries today. Among those old Saxons the custom grew up of allowing the facts in the case to be determined by twelve men of the neighborhood, who were most intimately acquainted with those facts. When they came over to England these Saxons brought this custom with them, and from it has been developed the Trial by Jury. The colonists of this country, most of whom came from England, brought with them this important element in the establishment of justice, and it is found today in nearly all the states.

Again, when in the boy-court the facts of the case have been established and it becomes necessary to apply the rules of the game to the particular case, the boys frequently, invariably in difficult cases, turn to some boy or boys known to be well versed in the principles of the game, and defer to his or their opinion. And, similarly, in the Folk-moot, much deference was paid in rendering judgment to the old men who for many years had helped to render justice, and who, in consequence, had much knowledge of the customs, unwritten laws, in accordance with which decisions were rendered. In this deference to one or more persons who are recognized as understanding the principles involved in the case, we see the germ of judgeship in our present courts.

And finally, a boy naturally reserves the right, mentally or avowedly, of appealing from the decision of the boys to the teacher or his father, in case he feels that he has been unjustly dealt with.

Thus we see that the principal elements of the courts of today, the establishment of justice as a public trust, the determination of the facts by means of witnesses

and a jury, the application of the law by one or more judges, the right of appeal to a higher court, are not artificial, but in the nature of things. We inherited them from our primitive ancestors, and in that sense they may be said to have been imposed upon us. But their naturalness appears in the fact that boys when left to themselves introduce the same elements into their boy-courts.

CHANGES MADE IN COURSE OF TIME.

In the Jury System.-The jurors were originally, as has been said, persons acquainted with the facts. After the Norman conquest, it came about that the jury consisted of twelve persons disinterested and unacquainted with the facts. Probably the change gradually came about from the difficulty of getting twelve men eligible to the jury who knew of the facts. Persons ineligible to the jury were then invited to give it information, but not to join it in the verdict. The next step, taken about 1400 A. D., was to require these witnesses to give their evidence in open court, subject to examination and cross-examination. The testimony of the witnesses, however, was still merely supplementary. Then in the time of Queen Anne, about 1707 A D it was decided that any person who had knowledge of the facts of the case should appear as a witness, that the jury should consist of persons unacquainted with the facts, and that the verdict should be rendered in accordance with the evidence. And so it is to this day, both in England and America.*

"It is not true, however, that a man is disqualified

* The best history of the jury system is probably Forsyth's.

from serving on a jury simply because he has heard or read of the case, and has formed and expressed some impression in regard to its merits; if it were, the qualifications for jury service in cases that attract great attention would be ignorance and stupidity. The test, therefore, is not whether the juryman is entirely ignorant of the case, but whether he has formed such an opinion as would be likely to prevent him from impartially weighing the evidence and returning a verdict in accordance therewith."*

In the Officers.-As has been said, there were in the old Saxon courts no court officers. But quite early the necessity for such officers became manifest. And several of the offices then established have come down to Some of them, however, have been so modified in the progress of time as to be hardly recognizable.

us.

CHAPTER III.

PROCEEDINGS IN A JUSTICE COURT.

I. IN ORDINARY CIVIL ACTIONS.

Definitions.-A Civil Action is one having for its object the protection or enforcement of a private right or the securing of compensation for an infraction thereof. For instance a suit brought to secure possession of a horse, or to secure damages for a trespass is a civil action. The person bringing the action is called the

*Dole's Talks about Law, p. 59.

plaintiff; the one against whom it is brought, the defendant. The plaintiff and the defendant are called the parties to the action.

Jurisdiction.-A justice of the peace has jurisdiction within the county in most civil actions when the amount in controversy does not exceed a certain sum, usually one hundred dollars. (See p. 296.)

PRELIMINARY TO TRIAL.

Complaint and Summons.-In bringing a civil action, the plaintiff or his agent appears before the justice of the peace and files a Complaint. In this he states the cause of the action. The justice then issues a Summons. This is an order to a sheriff or constable commanding him to notify the defendant to appear before the justice at a certain time and place to make answer to the plaintiff's demands. (Form on p. 277.)

Sometimes on bringing an action or during its progress a writ of attachment is obtained. To secure this writ, the creditor must make affidavit to the fact of the debt, and that the debtor is disposing or preparing to dispose of his property with intent to defraud him, or that the debtor is himself not reachable, because hiding or because of non-residence. In addition, the creditor must give a bond for the costs of the suit, and for any damages sustained by the defendant. The justice then issues the writ, which commands the sheriff or constable to take possession of and hold sufficient goods of the debtor and summon him as defendant in the suit.

Another writ sometimes used is the writ of replevin. To secure this writ, the plaintiff must make affidavit that the defendant is in wrongful possession of certain

(described) personal property belonging to the plaintiff. The plaintiff then gives a bond for the costs of the suit. and for the return of the property in case he fails to secure judgment, and for the payment of damages if the return of the property cannot be enforced, and the justice issues the writ. This commands the sheriff or constable to take the property described and turn it over to the plaintiff, and to summon the defendant as before.

Pleadings.-The next step in the process, in any of the cases, is the filing of an Answer by the defendant, in which he states the grounds of his defense. The complaint of the plaintiff and the answer of the defendant constitute what are called the pleadings.* If the answer contains a counter-claim, the plaintiff is entitled to a further pleading called the Reply. The pleadings contain simply a statement of the facts upon which the parties rely in support of their case. No evidence, inference or argument is permitted in them.

Issue.-It is a principle of pleading that "everything not denied is presumed to be admitted." The fact or facts asserted by one party and denied by the other constitute the issue. If the defendant does not make answer on or before the day appointed in the summons and does not appear on that day, judgment may be rendered against him. If the plaintiff fail to appear, he loses the suit and has to pay the costs. For sufficient cause either party may have the suit adjourned or postponed for a short time.

Jury.-On demand of either party a jury must be impaneled. The jury usually consists of twelve persons, but by consent of the parties the number may be

*For a more extensive discussion of pleadings, see chapter VII.; or Dole, pp. 36-42.