back to where it is supposed to have left the regulation route, and made to commence the journey over again from that point, there would be, at least, some double work avoided; but it is compelled to return to the original starting point, and to go over all the long stretch of open turnpike where, beyond all doubt, it had correctly and safely traveled before. A man of good intelligence and sense, but not learned in the law, would call this an absurdity; and he would call it by the right name. It is like tearing a massive brick house down to its foundations and building it all over again, on account of a defect in a board partition in the attic.

What is the remedy? With respect to cases tried with juries, the solution of the question is no doubt fraught with difficulties, and would require radical constitutional amendments. In most of the States, however, the majority of civil cases are tried without juries. (This article has no reference to criminal practice.) Equity cases, in which neither party can demand a jury, form a very large class; and in law cases the right to a jury is in a very large proportion of cases waived. Leaving jury cases, then, for the present, out of view, partial remedies, at least, for the evils of frequent new trials readily suggest themselves.

As a main reform, the statutes regulating civil procedure should provide that except when otherwise stipulated by the parties the appellant, on appeal from a final judgment, should put into his statement on appeal the whole case as it was revealed to the Court below. Then the appellate Court, having the whole case before it, should be compelled to decide-not as to the character of some intermediate movement of the lower Court merely, but whether the final judgment, upon a broad view of the entire case, was right or wrong. If, upon such a comprehensive and common sense view, the judgment is found to be right and just, it should be affirmed, notwithstanding the fact that the Court below had some notions about some things in the case not entertained by the Court above. If, however, on such a view, the appellate Court concludes that

the judgment is wrong, then, as a general rule, subject to a few exceptions, it should determine what judgment would be right, and order the Court below to enter it—thus ending the case. When the whole case is before the appellate Court, it can know that the judgment is wrong only by knowing what judgment would have been right. Why, then, not order the right judgment to be entered? Why send the case back for a new trial, and incur the useless expense and cause the ruinous delay of trying the whole case over again? Under the practice suggested the true end of litigation would be reached within a reasonable time, and Courts of last resort, instead of being mere "Courts for the correction of errors"-mere critics of the work of others-would have opportunities of carving out original monuments of justice.

Old practitioners can easily suggest objections to the foregoing views; but upon examination these will be found, for the most part, to be easily answered. In the first place, it may be said that the expense of writing or printing a transcript on appeal containing all the evidence would be onerous. There are many instances, however, where the whole case clearly hinges upon one or two points, and where a very short statement would be sufficient. In many other instances attorneys could agree upon a comparatively short digest of the evidence, which would fairly present the whole case. But if a case be supposed where every word of the short-hand reporter's notes must be put into the transcript, still the cost will be only a trifle compared with the ruinous expense of an entire new trial; and parties would have the satisfaction of feeling that no step would have to be retraced, and would be free from the harrowing doubt, "If it were only done when 'tis done!"

In the next place, it may be objected that the higher Court is not in a position to finally dispose of a case, because it deals with a printed transcript, and cannot well weigh the testimony of witnesses whom it does not see or hear. This objection would not be a controlling one even if the case was being heard,

trial.

as in the nisi prius Court, upon an original Under the old equity practice cases were heard upon depositions, and in the Federal Courts today the Circuit Judge, in such cases, does not see or hear the witnesses; and it does not appear that justice is less surely done in those cases than in others. But, on appeal, the case has already been tried in a Court where the witnesses were seen and heard. And the present rule, in every appellate Court in the nation, is that the decision of the Court below, on any matter of fact as to which there is a conflict of evidence, will not be inquired into or disturbed. For, while the capacity of a nisi prius Court to decide the law correctly is distrusted, there is freely conceded to it the far higher and broader capacity to look through contradictory testimony; to weigh the conflicting interests, prejudices, and passions of parties and witnesses; to understand the secret springs of human motives and actions; to detect naked perjury, false exaggeration, or fraudulent concealment; to know what circumstances are important and what are not; and to keep the whole of a complicated case before the mind like a picture, and see in it the true and material facts. Apply this same rule under the change suggested, and the appellate Court would have no embarrassment in handling matters of fact. It would be assumed then as now that the lower Court properly weighed the conflicting evidence, and found the truth. It seems clear, therefore, that this objection is untenable.

It may be said, also, that the Courts of last resort would not have the time to thus finally dispose of cases. Undoubtedly there would be instances where it would require a little more solid thinking to determine what judgment would be right, than to get rid of the whole thing, temporarily, by merely saying that the judgment of the lower Court was not right. And some of the time and labor now used in writing opinions, with a view of making precedents for future cases, would have to be devoted to the duty of doing justice in the case at bar. Indeed, the present system of writing opinions in all cases, and having them published in books of reports,

which prevails in all the States and Territories, and in nearly all the Federal Courts, must soon necessarily break down with its own weight. Taking the present ratio of increase of production as a basis, one might almost calculate the time when there will be enough of law books to cover the entire surface of the land. Cremation will, probably, be the only remedy for this, as for another evil. Of course, there will always be a few leading questions arising, the decision of which by the highest Courts should be made public, for the sake of uniformity; but the cause of justice would not suffer if the publication of judicial opinions were reduced ninety per cent.

It must be remembered that the legitimate purpose of a Court in deciding a law suit is to do justice to the parties to that suit ; making precedents for future cases is purely incidental. With a proper practice, therefore, the labor of the higher Courts under the change here suggested would be little greater than at present. Each case would be finally disposed of; and the books of reports would no longer be full of such expressions as: "When this case was here before we held, etc." But, if necessary, it would be better to enlarge appellate Courts, and limit the cases where appeals lie (which could be done to the furtherance of justice), than to continue the wastefulness of the present practice.

It may be asked, What could be done in cases where the Court below is held to have erred in receiving, or in rejecting, certain offered evidence? It will be observed that the objections thus far expressed to a new trial have been to an entire new trial, and are consistent with the mere temporary opening up of a case for a particular purpose—which might be necessary in a few extreme instances. Suppose that the lower Court is held to have erroneously admitted certain evidence; what then should be the course of the higher Court? Surely, having the whole case before it, it should be able to determine whether the exclusion of that evidence would have changed the judgment. Or, if it desires the opinion of the nisi prius judge on that

anew.

point, it could send the case back to the Court below with an order to exclude the obnoxious evidence, and render its judgment But why order it to hear all the other evidence over again? And, then, in a case where the alleged error was in rejecting certain offered evidence, the course to be pursued would be equally plain. Assuming the party to be able to prove what he offered to prove, if the judgment should not be changed by such proof, then it should stand. If, however, such proof should alter the judgment, then the Court below should be ordered to hear such rejected evidence, to give the opposite party an opportunity to reply to it, and to again render and send up its judgment. But in the name of common sense, and in the interest of things temporal and not eternal, why should the testimony of nineteen witnesses be taken all over again because a certain question asked of the twentieth witness was improperly excluded?

The same practice would also apply where new trials are asked on the ground of "newly discovered evidence," "accident or sur prise," etc.

The reasonable limits of this article preclude an examination of the subject of new trials in jury cases. It may be remarked, however, that the contrivances of equity, and the power conceded to Courts to set aside verdicts, have already destroyed much of the sacred right of trial by jury. Since a Court can disregard a verdict as wrong, it would be going but little further for it to say what verdict would have been right. The subject may be dismissed, at present, by saying that, if jury trials are to be retained, it would be better to go back to the views of the old English judges, when they first timidly began to assert the right to set aside verdicts. For a long time they doubted their power to disturb a verdict at all; and when they commenced to exercise the power, it was used only in rare and extraordinary cas

es.

66

They held it to be an extreme stretch of power to overthrow verdicts "given by twelve men upon their oaths"; that it would be mischievous to do so on account of a slip of the judge" in charging them; and that a large number of new trials would be a "reproach to the law," and an evil in the administration of justice." Really a man's right to have his case tried by a jury amounts to little, if a verdict in his favor can be set aside by a judge. Logically, the verdict should be final; and if any instructions are given by the judge, they should be considered as only advisory. If juries cannot be thus trusted, then the whole jury system should be abolished. But if either view be yet considered too radical, it may, at least, be said that there should be a curtailment, in some way, of the facility and frequency with which Courts now overturn verdicts.

If the practice herein suggested were adopted, the trial of a case in the nisi prius Court would at once assume a gravity and importance which do not now characterize it. Parties and attorneys would know, from the start, that every movement was permanent and vital. Thorough preparation, both as to the law and the evidence, would be made, under the consciousness that there would be no chances for the result of slipshod work to be avoided by an entire new trial. All the essential facts would be hunted up and introduced. The law of the case would be fully investigated by counsel beforehand; and the judge would not be forced to rule on points raised upon the spur of the moment, about which attorneys had no authorities to cite, and no arguments to offer. There would be no feeling that it did not matter much how the judgment went in the Court below. Upon such a trial the decision would, ordinarily, be as nearly correct as it is possible for the human mind to understand the language of the law, and to deduce truth from human testimony.

T. B. McFarland.

MARY BAXTON sat before her desk sharpening a pencil. If you had studied her closely, you would have seen that she was a painstaking woman by the way she performed that little act; and if you had studied her yet more closely, you would have guessed that matters of importance lay on her mind. Responsibility is not such a new feature in Mary Baxton's life, for she is a business woman; but this must be an affair of more than ordinary import. She is writing a letter, and from the care given to it, and from the words dropped now and then, one might suppose it to be a dispatch to foreign powers; that she was sending some bark away to trade for ivory work and silks in the Celestial Empire. Is she the mer chant who must bargain with half the world, gathering products from east and west, who must have an eye to all storms, must start the captains with careful orders, as beseems the weight of the undertaking and as becomes a master?

To use a phrase often on her lips, "The principle is the same." The bark that sailed from their little haven was good Mr. Jones, the senior member of the firm "Jones & Brown," and the oriental wealth to be brought back was Miss Baxton's first silk dress. Explicit directions must be written down; for Mr. Jones was a man who knew which coffees had most aroma and which spices were true to their labels, yet could not distinguish among purples, greens and blues, and would not consider a point or two of moment in the trimmings of a dress: he knew, however, the square-dealing houses, and the rest depended upon the letter.

The letter was worthy the commission, neat and workmanlike; but it was not without concern that she gave it into the hands of Mr. Jones. Mr. Jones was forgetful; he had done several unheard-of things of late, and had been known to carry a letter in his pocket for a week. This the junior member

told Miss Baxton confidentially, adding kindly that they must relieve Mr. Jones of some of his cares. Saying which, the junior member squared his shoulders in the consciousness of youth and power.

Miss Baxton had done the business with unusual dignity, and Miss Baxton was usually dignified. You will ask why this peculiarity, and I will answer- "The Baxtons." Business had given the direction to her activity, to her pleasures, and even to her future ; yet something beyond had given the tone to them. That something beyond was "The Baxtons." Business and "The Baxtons"! how shall we reconcile them? This woman must have reconciled them some way, for surely it is not a dissatisfied person whom we see before us.

She is sitting now with her head resting on her hand, having got the letter off her mind, and her thoughts are wandering back over incidents of her life. Those do not seem to her empty or mean, but, on the contrary, very interesting. Her life had been full of little events, having only the romance of a name to differentiate it from the lives around her; yet that name had been the bit of glass, seen through which common things had lost their hardness of outline, and had become iridescent.

The picture of Mr. Baxton hung over their mantel, the ideal of her childish dreams-a strong, refined, and wonderfully attractive face. He was the younger son of a proud German family whose fortunes were waning, one of the many who come to this country to better their finances, with very vague ideas of how it is to be done. He had settled here, married, and finally gained property; and their home for several years before his death had not wanted any grace that money can give.

For Mary there was but a faint memory of him she had once called father; but, added to what Mrs. Baxton could tell her of his

O, wonderful things are castles in the air! In them we find what were else denied the high, the beautiful, the grand. So it is not without good that they are built. "Castles in the air are well enough," says Thoreau, "only put foundations under them." At least, we should work toward that end. But her dreams were not of the sort she could work toward. For a while she got much harmless amusement from them: but as she grew older her knights and ladies were as far away as ever, and she was restless for the things her life had not known. She was not one whom dreams or ideas alone would always satisfy; she needed to see them take visible shape, to express them in action. Her native good sense began to tell her that there was little to be expected from foreign relatives, nothing, after the romantic style she had pictured. The future seemed destined to be as prosaic as the present.

Soon after the death of Mr. Baxton there had been reverses. It had not taken long to learn that the things we cannot pay for are the things that, usually, we can do without so there was the strictest economy, and beauty was often sacrificed to utility. Mrs. Baxton was so bent on doing her duty bravely, that she put an austerity into their living that need not have been; for the richness of life is limited only by our nature, and hers was many-sided.

One day Mary broke forth in an impatient way: "What's the use of living the way we are? What can one do in this little placeall one's life?"

Her mother answered: "Are not kings when exiled and in poverty, still kings? Why not be a Baxton, although banished from your father-land; although unseen, never forgetting what is due your nature ?"

The words were spoken half playfully, yet while Mary answered, "It's a great deal to expect from one alone," there was a light in her eyes.

When Mrs. Baxton saw the drift the girl's thoughts were taking, she realized that she had failed somewhat in her home-keeping. Because many unimportant things must be

A few days after they went for a walk. It was drawing toward evening, the time when, if it were ever possible, we come near and feel the something in each other that tells us we are one. It is not a time for idle words, but earnest speech finds then an open gateway to the soul. Mrs. Baxton talked about the future: together they would make a worthy home; there should be more of repose in it, more dignity, more beauty, even if they had to simplify still further. Together they laid plans, for Mrs. Baxton felt some of her old ambitions reviving. The young are not the only ones to whom lessons are taught; their elders are often under obligation to them for stirring up fresh aspiration. So the mother led the way in the bright land of dreams, yet ever from the impossible to the possible. And Mary was glad of something definite to strive after, glad of some pleasant promise for today, instead of a visionary future. She recognized the fact that they would probably live out their days in Fairbank, but there was to be help and sympathy toward a more beautiful living.

Another thought was in her mind, that had taken root from her mother's answer when she, Mary, had rebelled against things in general. She could be a Baxton, whatever the place, whatever the occupation was she not an heir to their courage, their pride, their honor, their ability? She had that inheritance as truly as any ancestor that ever laid lance in rest, and it was as much her duty to preserve that birthright as though she were belted knight or doughty baron. Why had she not honored herself more? She would be an exiled queen here in little Fairbank, stately, noble, proud of her truth, true to her honor, and with the generosity and gentleness that have so peculiar a charm in the proud; a queen from no vain or selfish motive, only for her own approval.

Perhaps you will consider her train of thoughts romantic; if so, it was good and invigorating romance.

Other ideas were developing in her mind