Miscellaneous Matters

MISCELLANEOUS MATTERS.

Law and Equity. Our courts give relief of two classes, ac cording as they sit as courts of law or courts of equity. Equitable powers were formerly exercised by separate courts; but now the higher courts generally have both legal and equitable jurisdiction. A court of law as such is limited in its method of relief. Except in some eases in which the return of a specific chattel will be directed, and in actions concerning the title to real estate, a court of law can only compel the payment of damages. A court exercis ing equitable powers, on the other hand, may order a defendant to act, or not to act, in a certain way; the penalty for failure to com ply with such an order is punishment for contempt. Injunctions present a familiar instance of an equitable remedy, enforceable by contempt proceedings.

One of the important classes of equitable actions is found in bills for the specific performance of a contract. Instead of sub mitting to a breach of contract, and recovering money damages therefor, the aggrieved party may in many, but not in all cases, by means of a bill in equity, compel the other party to perform the contract. Thus in the case of contracts for the sale of land, equity will take jurisdiction; in that of contracts for the sale of personal property, equitable relief is not ordinarily given. Equity will not in general grant specific performance of a contract involv ing the exercise of discretion and skill and the rendering of personal services, and would undoubtedly refuse to compel an architect to carry out an agreement to perform the services commonly rendered in the designing and building of a house. The reason is found in the impossibility of judicial supervision of the work. The remedy for such a refusal by an architect would be by an action for dam ages. A building agreement would not ordinarily be enforced in equity, although certain agreements involving simple construction have been enforced. A negative promise, as if an architect promises not to work for any person in a certain locality, other than A, or not to erect a building similar to X's, may be enforced by injunction.

The reforming of contracts, hitherto referred to, is also a matter within the powers of a court of equity only.

Resort to Legal Proceedings.

In regard to resort to the courts it is to be borne in mind that it is necessary not only to have a just case, but also to prove it. This proof may be before a jury if either side so chooses, and a little reflection will show the element of uncertainty which is thus introduced into any litigated dispute. Moreover the matter of proving one's case is much affected by the rules of evidence, rules sometimes arbitrary in their nature, and largely the result of practical considerations involved in the use of the jury system. From these it may result that matters which have sonie weight in ordinary discussion, are not allowed to reach the ears of a jury. Thus hearsay, or what one person knows only by the word of another, is generally ex cluded, although it might have a certain limited value as proof. Another practical consideration in a question of bringing suit arises in the difference in the laws of different states. It may happen that a person's chances of success in a suit depend upon the place where his action may be brought. The delay necessarily incident to legal proceedings, a delay especially trying in the large cities, is also to be considered. From these few considerations alone it appears that the question of advisability of bringing snit, or of peaceful compromise, may be a complicated one. On the other hand, by no means every suit that is begun is settled by trial in court. A lawsuit may be an excellent means of bringing an obstinate or grasping person to reason.

Liens. A lien is a claim or hold upon the property of an other as security for a debt or claim. Statutes in many states give so-called mechanics' liens upon laud and buildings to various persons who have clone work in constructing or repairing the lat ter, although it be only a contractor, and not the landowner, who is liable upon the contract. In a few states these statutes have been held to extend to architects; while in some other states it has been held that architects are not entitled to liens for services under these statutes.