arises in other states over the question as to what is or ought to be the common law rule on a particular subject.

In addition, the opponents of the system urge that a civil code involves a number of positive disadvantages. In the first place, it increases the diversity of the law among the various states. While the development of private law is in the hands of the courts, the tribunals of one state are always guided to some extent by the precedents of other commonwealths, and at times they modify their views so as to accord with the general weight of authority, thus working toward a desirable uniformity in the law throughout the United States. But the moment that the law is codified, the diversities among the states are crystallized and tend to become greater by subsequent legislative amendment.

The greatest objection, however, brought up against codification is the fact that it puts an end to the flexibility of the law. Where the common law is not codified, the courts, by distinguishing new cases and at times by overruling former precedents, may adapt the law to new conditions and keep it more or less up to the needs of the community. But as soon as the law is codified, this power of the courts is taken away from them and the rules of law can only be modified by legislative action, which leads to constant tinkering and uncertainty.

The Civil Law

The whole domain of the law falls into two divisions — civil and criminal. The purpose of the latter-to use legal terminology is to punish and prevent public wrongs, while that of the former is to protect the rights of the individual and to redress his wrongs. The rights of the individual can be classified under three heads: the right of personal security, the right of personal liberty, and the right of private property. The last is the most complicated of the three and to it we must devote some attention.

(1) REAL PROPERTY. - Property is divided into two classes, real and personal. Real property consists, in general, of land and rights connected with land, while the personalty includes all movable things and rights not connected with land. Real property is again subdivided into corporeal, or tangible, and incorporeal, or intangible. The former is land and buildings, while

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the latter includes all the rights which a person may have in the land of another, such as the right of way over his neighbor's farm, the right to pasture cattle in another's meadow, etc.

According to legal theory, land is not owned absolutely. The so-called owner has an interest or an "estate" in the land. These "estates" are of various kinds. The highest estate that one can have in land is an estate in fee simple, which virtually amounts to absolute ownership, and the person who has such an estate in a plot of land is ordinarily regarded as the owner. He may use it for any purpose that does not violate another's right, and dispose of it in almost any way that he chooses. Next to the estate in fee simple comes the estate for life. The person who owns land in fee simple may convey it to another to hold during life. The latter thus gets a "life estate." Then there are life estates which arise by operation of law; in most states a husband has a life estate, which is called curtesy, in his wife's real property, after she dies. In the same way, if the husband die first, the wife has a life estate, or dower, in one-third of all the real property owned by the husband during their married life.1

(2) PERSONAL PROPERTY. - Personal property is divided into four classes. Leases of lands or buildings are personal property and constitute the first class; they are known as chattels real. The second group includes everything which is ordinarily known as personal property; that is, tangible things, such as watches, pianos, clothing, etc. The third group consists of rights which do not extend over any tangible things, either immovable or movable, but are directed against particular persons or corporations, such as claims against debtors, notes, stocks, bonds, etc.; they are called in law "choses in action." The fourth group consists of trade-marks, copyrights, etc.

(3) TORTS.-The violations of private rights recognized by

1 Estates in fee simple and estates for life are called "freehold estates," all others being named estates less than freehold. The most important one in the latter category is the estate for years. A person who leases land or a building from another for a period longer than one year is said to have an estate for years. Estates can be created to commence in the future. For instance, a person may grant an estate for life, at the same time specifying that when the life tenant dies a certain person shall get the estate in fee simple. Estates may also be made conditional. To illustrate, a person may leave all his real property to his widow for life, provided she remains unmarried. Then if she should marry, she generally loses the estate.

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law are called "torts." A person guilty of a tort may be sued for damages by the person whom he injures. For convenience, we may subdivide torts into three classes: those directed against the person, those aimed at property, and those which are invasions of both person and property.

(a) False imprisonment one of the torts in the first class consists in arresting or detaining a person without sufficient cause. Somewhat akin to false imprisonment is malicious prosecution. A person who maliciously and without probable cause institutes proceedings against another is guilty of this tort, provided the original action has terminated in favor of the injured party. Another tort directed against the person is assault and battery. All the various forms of disturbance of family relations are torts, such as abduction of the wife or child, adultery, alienation of affection, etc. Finally, there is the tort of defamation of character. It occurs in two forms: libel, which is expressed in print or writing; and slander, or oral defamation.

(b) Of the torts directed against property, the most important one is trespass or disturbance of another in the possession of his property. This is found in two forms: trespass upon land, to constitute which mere unauthorized entry on another's land is sufficient; and trespass to goods, which consists in wrongfully taking or destroying personal property. Deceit is knowingly making a false statement to another on which the latter relies and is thus damaged.

(c) Some torts affect both person and property. The first of these is nuisance. In law any disturbance of another's reasonable use and enjoyment of his own property constitutes a nuisance. Thus the maintenance of smelting works which give out unpleasant odors, unreasonable ringing of church bells, noises which disturb sleep, and numberless other acts are called nuisances. Finally, there is the tort of negligence, which consists in the failure to perform the duty of care which one owes to others. Thus the reckless running of a railroad train which results in an accident, negligent driving in a city street, the collapse of a building due to defective construction, are all actionable torts.

Although a person may be guilty of a tort there are circum

1 Reference: Burdick, Law of Torts.

'Putting another in fear of personal injury is an assault, while inflicting violence upon him constitutes a battery.

stances under which no recovery is allowed against him. Thus, if the injured party was himself guilty of negligence and his negligence was one of the causes that led to his injury, he cannot recover any damages. This "contributory negligence" on the part of the plaintiff is considered a complete defence. In many cases, the so-called "fellow-servant rule" prevents a recovery. For example, a master is liable for his servant's torts; but if one employee is injured by the carelessness of another employee, the one so injured cannot recover against the employer, on the ground that they were "fellow-servants" and are presumed to have assumed the risks of each other's negligence.1

(4) CONTRACTS.-A large group of rights arises from agreements between individuals known as "contracts." To constitute a contract there must be an offer made by one party and an acceptance of the offer by the other. Thus if Smith says or writes to Jones, "I offer to sell you my house for $10,000," and Jones replies "I accept your offer," in legal terminology their minds have met and there is a contract between them. Smith is then bound to convey the house, and Jones to accept and pay for it. A contract, to be valid, must be made for a "consideration "; that is, each party must give up something. Thus in the illustration above, one promises to convey the house, while the other agrees to pay for it. A mere promise made by one party, with nothing received in exchange for it, is not binding. A contract need not always be expressed in so many words, but is often implied from the transaction. For instance, if one orders goods from a store, a promise to pay their reasonable value is implied.

In most instances, no formality is necessary to make a valid contract and an oral agreement is as binding as a written one." There are a few classes of contracts, however, which must be proved by written evidence, before a court of law will enforce them. Among these are contracts for the sale of real estate, for the sale of goods worth more than a certain amount, contracts which are not to be performed within a year, and a few others. There are several forms of contracts that are especially important. One of these is negotiable instruments, such as prom

This rule is expressly abolished in some states with regard to certain employments. See below, p. 736.

2 Contracts do not have to be made in person, but may be made through an agent.

issory notes, drafts, checks, etc. Negotiable instruments have one peculiar characteristic. A person may obtain such an instrument from another by fraud and therefore may not be able to sue on it, but if he transfers it for value to another, who does not know of the fraud, the latter can enforce it. This rule originated in commercial law, and its purpose is to facilitate dealings among merchants and bankers. Another common form of contract is the contract for the sale of personal property. What are known as bailments are contracts that occur very frequently: they consist in the delivery of personal property to another for some particular and temporary purpose. When a person lends a book to a friend, gives his watch to a watchmaker for repairs, pawns his jewelry, deposits his goods in a storage warehouse, or ships goods by freight or express, a contract of bailment is consummated. Still another large class of contracts is seen in policies of insurance, life, fire, marine, accident, etc.

If one of the parties to a contract fails to perform his obligation, the other may sue him and get such damages as were caused by the breach. But in some cases the injured party may do much more. He may bring a suit in equity, and the court of equity will order the other party to carry out his contract. Such relief, which is known as "specific performance" is limited, however, to certain classes of contracts, the principal one of which consists of agreements for the sale of real estate.

(5) DOMESTIC RELATIONS.-One of the important branches of the law deals with marriage and all the relations growing out of it. At common law no particular formality was necessary to constitute a valid marriage. An agreement to live as husband and wife was sufficient. This rule is now generally modified by requiring a formal solemnization of all marriages. But no marriage may be consummated anywhere between close relatives or by persons below a certain age, and any marriage induced by fraud or duress may be declared void at the instance of the injured party. Mental or physical incapacity is also a ground for annulment of marriage.

At common law, all personal property belonging to a woman becomes the property of the husband on her marriage; the husband is obliged to support his wife, and for this reason he is liable for all necessaries furnished to her, if he fails to provide them himself; he is also liable for debts contracted by his wife