law, which, except incidentally, is not discussed in this volume. Here and there throughout this volume a case appears which deals with the law of torts, but in no sense is there any attempt here made to develop this broad and important field of the law.

The criminal law, closely allied to the law of torts, is not taken up in this book. Often an act which constitutes a tort will also constitute a crime. Crimes are acts, usually accompanied by some kind of mental element, called criminal intent, which are more serious invasions of personal and property rights than are those torts which are not crimes. There are some kinds of crimes which are not directed against any particular persons or property, and which are not torts, as, for example, gambling, violation of the laws prohibiting the manufacture and sale of intoxicating liquor, violations of pure food laws, treason, violations of the revenue laws, etc. The list is a long one, as is also the list of crimes which are directed against some particular person or property. All crimes have this element in common: The proceeding in the courts against the alleged offender is instituted by some officer of the state, and is under his control, and is not under the control of the person who may have been injured by the act. For his injury he has his independent remedy against the wrongdoer.

We turn now to another field of the law, which may be called the law of property. Having noted that one important object of the law is to protect interests with respect to property, the question arises: How may interests with respect to property be acquired? To enumerate some of the methods: Property may be acquired by gift; by contract of sale; by deed; by will; by inheritance. Property may also be acquired by confusion; that is, where the property of one person becomes so mixed with that of another that it cannot be separated. The whole mass, as a result, may belong to the one or the other, depending upon circumstances. So, also, property may be acquired by adverse possession; that is, by exercising dominion over it for some prescribed period of time. A riparian owner of land becomes the owner of the land added to the shore line by accretion. Ownership in things, not theretofore the subject of ownership, and in things abandoned, may be acquired by asserting and maintaining control over them. This field of the law, and it is but dimly and partially sketched here, occupies a most prominent position in the law generally. The law with respect to the acquisition and transfer of titles to land, the law with respect to wills, and of intestate succession alone, might readily engage the attention of a scholar for years. But this branch of the law, like the law of torts, is not taken up in this book, except in so far as titles to personal property may be acquired by sale, and of negotiable instruments by negotiation.

Another portion of the law of property, in itself vast in extent, deals, not with the methods of acquiring interests in property, but rather with the kinds of interests which may be acquired. Ownership of property is a very complex set of legal relations. When a

person owns property, his dominion over it reaches its highest stage. He possesses all legal relations with respect to it. He has the privilege of user. He has the power to substitute other persons in the position which he occupies with respect to the property. He has a right that it shall not be injured or used by other persons. If other persons attempt to exercise powers with respect to the property, such as by attempts to sell it, such acts do not affect the owner's position with respect to the property. All of these relations are involved in the concept of ownership. The idea that an owner of property may dispossess himself of all of his legal relations with respect to his property is a fairly simple one. The question here is: How may the owner transfer his interests? But the further question arises: May an owner transfer some of his relations with respect to his property, and retain all other relations? May he transfer some relations to one person, and other relations to other persons? Observation shows that this is done constantly. For example, the mortgaging or pledging of property is a separation of the total relations constituting ownership, and a transfer, in some mode permitted by law, of some of these relations, and a retention of those remaining. So, also, property may be held in trust for other persons, in which case it is said that the trustee possesses the legal title and the beneficiary of the trust has the equitable title. This statement does not disclose what interests are held by the trustee, and what interests are held by the beneficiary; but it does declare that the sum total of the relations constituting ownership may be so divided, and that when a sufficient number of these, of the appropriate kind, are possessed by one person, such person will be called a trustee, and the persons who possess the remaining interests will be called beneficiaries of the trust, or cestuis que trustent. Possession of property alone may be transferred under various círcumstances. The party in possession is called a bailee; the party with whom he dealt, the bailor. Here again we have a division of the interests with respect to property. There are various other terms used in the law to describe particular situations when interests of property have been separated and possessed by different persons. Property may be left by will to A., and upon his death to B. The possibilities for creating various sorts of future interests in property are numerous. Property may be leased. A right to use another's land, or to take something of value from it, may be acquired. These interests are called easements and profits. The point of emphasis here is that the legal relations with respect to property are exceedingly complex, and that the possibilities for segregating various combinations of these interests, and of transferring them to different persons, is limited only by man's ingenuity and by principles of public policy. Like the law of torts, the law relating to the methods of acquiring interests in property, though most important and extensive, does not constitute the subject-matter of this book. For answers to the questions suggested above, we would be obliged to consult works.

on the law of mortgages, leases, pledges, trusts, bailments, future interests, and easements. There will appear, in the volume, an occasional reference to some aspect of the law of mortgages, of pledges, of trusts, and of bailments; but such references are incidental to the main theme.

There is still another aspect of the law of property, likewise not taken up in this book. This branch of the law marks the outer limits of the relations constituting ownership. How much water may a riparian owner take from the stream? May he drain the surface water from his land upon adjoining land? May one use his land for any purpose he sees fit? Are there any restrictions with respect to the manner in which one may use his land? A riparian owner does not own the water that flows by his land, although he may use it; in some states only a reasonable amount; in others, under certain circumstances, he may take all. Likewise there are different rules with respect to drainage. In some states one may not interfere with the natural flow of the water; in others he may lawfully build dikes against it. The restrictions upon the use of land are numerous. One has a privilege of using his land only in a reasonable manner. He may not so use his land as to interfere with a reasonable use of adjoining land. Certain kinds of improper uses are called nuisances. Modern legislation has added greatly to the number of restrictions upon the use of land. The height of buildings is regulated by statute. Certain kinds of industry cannot be conducted in close proximity to residential districts. These questions open up broad fields of inquiry in other portions of the law of real property, into modern legislation and constitutional law. In this connection one should call to mind the various statutory regulations applicable to the conduct of business generally.

This brings us to the consideration of that portion of the law which constitutes the subject-matter of this volume. It has been noted above that legal relations-legal rights and duties, and other legal relations-attach to individuals by the edict of the law alone merely because they are individuals, and that other legal relations arise out of the acts of parties themselves. In both cases, of course, the legal relations exist by virtue of the law, but in the first group they exist independent of the acts of the parties, while in the second group the relations do not arise until the parties have done certain acts. A particular group of facts which operate to create or change existing relations may constitute a will; another, a conveyance; another, a license; another may be a contract, and so on. The first four parts of this book deal with the various groups of facts, called contracts, which have the effect of creating or changing existing legal relations between persons. The reason for throwing the emphasis upon this branch of the law is because the greater volume of business transactions in everyday life are transactions. which do create, or otherwise concern, contractual legal relations. While the average person, in the course of a lifetime, will, no doubt, be interested many times in conveyances of land, wills, mortgages,

pledge agreements, trusts, etc., it will nevertheless be true that the number of these transactions, compared with the number of contracts in which he will be concerned, will be relatively few. Hence the emphasis is thrown on contracts. Part I deals with the general principles applicable to all contracts. Parts II, III, and IV deal with special kinds of contracts. Parts V and VI are devoted to some of the special problems which arise out of the form in which business is done; i. e., the partnership and the corporation.

SECTION 6.-LEGAL PROCEDURE

Some attention may now be given to the matter of legal procedure, to the end that it may contribute something to the understanding of the materials which constitute the chief basis for legal study; i. e., the decisions of the courts. The party who institutes a proceeding at law is called the plaintiff. In a suit in equity such party is usually called the complainant. In either case the party proceeded against is called the defendant. The first step consists in notifying the defendant that an action has been begun against him. For very just reasons the law does not permit a person to be sued unless such person has notice of the action. The defendant is notified by the service upon him of a document usually called a summons. In some states the law permits the plaintiff or his counsel to serve the summons. In other states the law requires the clerk of the court to issue the summons. The expression "service of summons" means the act of bringing to the defendant knowledge of the fact that a suit has been instituted against him. Usually statutes require that the defendant be personally served with the summons; that is, the party serving the same will be required either to read the same to the defendant or to leave a copy of the summons with him. Some statutes authorize the service of summons upon any member of the family wherein the defendant resides, and sometimes service may be made by publication. The next step consists in the filing of a document, variously called a declaration, a statement of claim, or petition, by the plaintiff, containing an orderly statement of the essential facts out of which the litigation developed.

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The defendant then interposes his defense. The defense may be of various kinds: First, the defendant may admit the truth of the facts alleged, but contend, as a matter of law, that they do not entitle the plaintiff to recover. This issue is raised by a pleading known as a demurrer. The question as to whether or not the plaintiff has stated a cause of action is then decided by the judge. second kind of defense arises when the defendant denies the truth of the facts alleged by the plaintiff. This raises an issue of fact. A third type of defense exists when the defendant admits the truth of the facts alleged in the declaration, but sets up other facts which he contends defeat plaintiff's cause of action. This raises an issue of fact. Issues of fact are tried by the court, with or without a jury,

depending upon the nature of the action and desire of the parties. It may here be mentioned that the Constitutions of the various states contain provisions which guarantee trial by jury. This guaranty does not apply to all kinds of actions. In general, there are three kinds of cases wherein there is a constitutional guaranty of jury trial: First, criminal cases; second, breaches of contract; third, actions of tort. In all other cases, as a rule, there will not be a constitutional guaranty of jury trial, although statutes may, in some instances, give the right of jury trial where there was no such right under the Constitution. Unless authorized by statute, there is no right to jury trial in proceedings in equity, as distinguished from proceedings at law.

The first step in a trial consists in the impaneling of the jury. The process of impaneling the jury consists in questioning the prospective jurors with respect to their competency to serve. Statutes prescribe what the qualifications of jurors shall be. In general, a juror will be competent to serve if he has no fixed opinion with respect to the cause in which he is to sit as a juror, and if he has no prejudices for or against either of the parties to the action or their counsel. Following the impaneling of the jury, counsel may make an opening statement. This statement is merely for the purpose of informing the jury of the general nature of the action and of what the parties expect to prove. Following the opening statement comes the examination of witnesses. Generally the plaintiff is required first to introduce his evidence. Upon him, as a rule, rests the burden of proof. The defendant is not called upon to introduce any evidence until the plaintiff has completed his case. The evidence is then heard.

There are many restrictions with respect to the obtaining of evidence. A witness may not relate on the witness stand every fact which he may deem germane to the case. The rules of the substantive law of property, of contract, tort, crimes, etc., the rules of pleading, and the rules of evidence prescribe the circumstances under which evidence may be given. In a suit upon a negotiable instrument by a holder in due course against the maker, evidence that the instrument was not delivered to the payee is inadmissi- · ble, because a rule of substantive law declares that this fact constitutes no defense. In an action for assault and battery where the only issue of fact tendered by the pleadings was whether the defendant did the act, evidence tending to show justification or excuse would be excluded. The law of pleading fixes the issues. Evidence of facts not in issue is inadmissible. Only that evidence relevant to the issues as framed by the pleadings is admissible. The scope of the law of evidence is indicated by Professor Wigmore in the following language: "The law of evidence * * includes the

rules applicable when any knowable fact or group of facts is offered before a legal tribunal for the purpose of producing persuasion, positive or negative, on the part of the tribunal, as to the truth of a