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defendant's property and sells enough at auction to pay the amount of the judgment to the plaintiff and his own charges. Of course, if the defendant should be a man without property, the plaintiff has no redress. In litigation over title to real estate, however, the usual judgment is that the plaintiff enter upon the premises. If the defendant then resists the plaintiff, he may be evicted by force by the sheriff.

In equity cases the decision of the court is called the decree. It does not ordinarily award money damages, but orders the defendant to do or not to do something. The decree may, for instance, command him to carry out his part of a contract and convey to the plaintiff land which he agreed to sell to him, or it may enjoin him from maintaining a nuisance, such as using soft coal in his furnace. In fact, a decree in equity may take on any one of innumerable forms, but it always is in essence a command to do, or an order not to do, something. If the defendant fails to obey the decree, he is guilty of a contempt of court, and may be fined or imprisoned until he complies with the order.

After the case is decided, the losing party may appeal: (a) because of errors of law committed by the judge or (b) on the ground that the verdict was contrary to the weight of evidence. The side that loses on the appeal may sometimes carry the matter still higher, until the case finally reaches the highest court of the state or of the nation. The highest court usually passes only on questions of law."

If the highest court which the case can reach affirms the judgment of the trial court, that ends the litigation. But if the judgment is reversed, the case is usually sent back for a new trial. Then the party that loses on the second trial may again compel his adversary to run the gauntlet of the appellate courts because of alleged errors committed in this trial. If the judg


1 For the conditions of appeal to federal courts, see above, chap xv. "The appellate courts always consist of several judges, and the opinion in each case is written by one of them. The opinions of the highest court of each state, and sometimes those of some of the inferior courts, are published and become precedents for future decisions. If one or more of the judges disagree from the opinion of the majority of the court, a dissenting opinion may be handed down. In most states there are special reporters, whose duty consists in publishing the official reports of the decisions of the courts. 3 See below, p. 567.

ment is again reversed, a third trial must be had and the same process may be repeated. If the party that loses at each stage desires to appeal, there is no way of ending the litigation until some judgment of the trial court is affirmed on appeal.

In some instances this freedom of appeal results in a practical denial of justice. Thus there is one case on record in New York which was in the courts for twenty years. In 1882 a brakeman who was injured while in the service of a railroad brought suit against the company. In 1884 he recovered $4000 damages, but two years later the verdict was reversed on appeal. On a new trial he got a verdict for $4900. This was appealed to two courts successively. The first affirmed and the second reversed the judgment. The company was successful at the third trial in 1889. Two appeals by the brakeman followed, the court of last resort deciding in his favor in 1897. The case was then tried for a fourth time, and the brakeman recovered $4500. The company then appealed and met with success. A fifth trial was necessary, and the jury awarded the plaintiff $4900 damages. The judgment was again set aside on appeal. A sixth trial followed with the same result. In 1902 the seventh and last trial took place. The plaintiff recovered $4500. The company again appealed, but was unsuccessful. This finally put an end to the litigation.

This is, of course, an extreme case and similar cases are rarely found in our legal history. Appeals are generally taken only when the counsel in the case feels that there is a fair chance of success or of wearing out the opposing party. A majority of appeals are unsuccessful, and it is only a small minority of cases that have to be tried more than once.

Nevertheless, the freedom of appeal and the consequent law's delay have been made the subject of severe criticism.2 Delays in civil cases are far more frequent than in criminal cases, and, as has been truthfully remarked, often amount to a denial of justice. But, on the other hand, it is hardly practicable to restrict the freedom of appeals without making arbitrary rules that would be bound to work injustice at times. To allow appeals only in controversies involving large amounts would be

'Baldwin, The American Judiciary, pp. 366–367.
'Readings, p. 500.

undemocratic and give unjust privileges to wealthy litigants. Moreover, cases that are of comparatively trifling pecuniary value sometimes involve legal principles of great importance that should be passed upon by the higher courts.

It has been suggested that appeals should not be made a matter of right, as they are to-day, and that no appeal should be allowed unless permission is granted by the trial judge or by the appellate court. However, it is pointed out that such a system would be likely to result frequently in a denial of the right of appeal in cases in which injustice had been done and should be righted by a higher tribunal.

Generally, when an appellate court reverses a judgment, it has the power to enter a final judgment for the other party. This power is rarely exercised, however, and the case is usually sent back for a new trial. In some instances, a new trial is inevitable, as when the proof of essential facts has been shut out at the trial or damages have been assessed on an improper basis. But very often the appellate court has sufficient data on the record before it to make a final disposition of the case. If this were done whenever it is possible, one of the largest sources of delays would be abolished without any revolution in our legal system.

Criminal Law 1

We have briefly surveyed the principal wrongs against which the state protects the individual, and have examined the methods for redressing them. We must now consider another class of wrongs public wrongs, or wrongs against the state or community. Wrongful acts included within this class are known as "crimes," and are punished by the state. While in most cases these acts primarily harm some person, they are also regarded as injuring the state, because the state has an interest in the safety of the lives and property of its citizens.

Inasmuch as a criminal act may at the same time contain the elements of a civil injury, a person guilty of a crime may lay himself open to a suit for damages as well as to punishment. Thus if one person assaults another, he may be prosecuted by the state as a criminal and also sued for damages by the injured party.

1 Reference: May, Criminal Law.

All crimes are divided into two classes; felonies and mis-) demeanors. The former includes all graver offences, generally' those punished by death or by confinement in a state's prison. All lesser offences constitute the second class. They are ordinarily punished by fines or imprisonment in a penitentiary or county jail for comparatively short terms. 1


The principal felonies are murder, manslaughter, arson, burglary, robbery, and larceny. Murder is the intentional, and manslaughter the unintentional, killing of a human being. In some states murder is divided into degrees according as it is premeditated or unpremeditated. Manslaughter may take any number of forms and sometimes is also divided into degrees. Thus if a person dies as a result of a blow which was not intended to cause death, or if he is run over and killed by an automobile because of the negligent driving of the chauffeur, or if he meets his death in a railroad wreck brought about by the failure of the proper employee of the company to give the required signals or set the switch, the act in each case constitutes manslaughter. Intentional killing in a sudden heat of passion caused by adequate provocation is also generally regarded as manslaughter and not murder.

Arson is wilful and malicious burning of a dwelling-house. Any incendiarism, however slight, is sufficient to constitute the crime. Burglary consists in breaking and entering into the house of another with the express intention of committing some felony therein. It makes no difference whether the person actually commits some crime within the building: the breaking and entering is itself burglary. Robbery is taking another's property from his person or in his presence by force. Picking a man's pocket so that he is not aware of what is being done is not robbery, but larceny; but taking money from a person at the point of a pistol, or knocking him down and then stealing something from him, is punishable as robbery. Larceny is stealing the personal property of another. All the various forms of theft and swindling are larceny, and it is often divided into grand and petty larceny, according to the amount stolen, the former being a felony and the latter a misdemeanor.

In addition to the felonies enumerated above, many other 1 Conviction of a felony very often carries with it the loss of the right to vote.

offences are often made felonies. Forgery is generally a felony. It consists in making or altering a written instrument to defraud another. Thus, writing another's signature on a check or changing the amount called for constitutes forgery. Somewhat akin to forgery is the crime of counterfeiting or making false money, which is punishable by the federal government. Kidnapping is usually made a felony. Bigamy, which consists in having more than one wife or husband at the same time, is a felony. So is also the offence of perjury or the wilful giving of false testimony while testifying under oath in a judicial proceeding.

Other offences are misdemeanors. They vary greatly in enormity and many of them differ in the several states. Mayhem, though a felony in some states, is generally a misdemeanor. It consists in violently depriving another of the use of any of his members or often of any permanent physical disfigurement inflicted by force. Bribery is also a misdemeanor, though at times it is made a felony. So is knowingly receiving stolen goods. Malicious libel, which consists in defaming another in print or writing, is a crime and is punished as a misdemeanor. Assault and battery, disturbance of the peace, violations of the pure food laws, the use of false weights and measures, spitting on the floor of a street car or other public conveyances, and other miscellaneous offences, are misdemeanors. In fact, the whole mass of minor offences is included in this group.

It is not alone for offences actually committed that punishment is inflicted. It often happens that a person conceives the design of committing a certain crime and takes some steps toward carrying out his purpose, but is, for some reason, prevented from effecting it. In that case he is punished for the attempt to commit the crime. Of course, a less punishment is inflicted for an unsuccessful attempt than for the crime itself. Thus a person intending to kill another might shoot at him, but miss his aim; he is then guilty of an attempt to commit murder.

Not only the principals who actually commit a crime are punishable for it; their accomplices are liable as well.1 Accomplices are of two classes: accessories before the fact and accessories after the fact. The former category includes any one who in any way advises, encourages, or assists in the prepara1 Readings, p. 449.

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