of actions, viz.: Notice of what your adversary claims, a definite time fixed for trial and hearing, and a fair opportunity to produce your evidence, these are the essentials, and a fair chance. to be heard on the law and on the facts before the tribunal, whatever it may be. These essentials being provided, the findings of fact ought to determine the question.

Now let me say, in answer to a suggestion which was made with reference to the exclusion of evidence and the impossibility of the reviewing court determining whether or not the excluded evidence would have turned the scales, and the suggestion also made with reference to the comment of the trial judge on the weight of testimony. In our revised code in Kansas we meet the first objection in this manner: That where a motion for a new trial is based on the exclusion of evidence or on newly discovered evidence, that evidence must be produced by affidavit, deposition or oral testimony, and on the motion for a new trial the whole matter must be passed upon, and the whole excluded evidence as well as admitted evidence goes up for consideration by the reviewing court. I concede that if the reviewing court finds substantial error in the case of a jury trial, then of course nothing can be done except to send the case back for another trial by a jury; but where the evidence is all produced, where the trier of the facts, the jury, has found a verdict in favor of one party and has established a basis of fact, on the submission of the question of fact fairly to the jury, then it is for the reviewing court to say-not on your technical exception, not on your fine point of practice, not on your mere pettifogging theory-whether substantial justice has been done, and if it has been done, that, it seems to me, ought to end the litigation. Parties are entitled to a determination of their rights, and it is a matter of the highest public interest that litigation should come to an end, that the rights of property should be established, and that the parties litigant should be permitted to go on with their business and know upon what basis they are doing it. The speedy determination of law suits is a matter of as much substantiality almost as is the correct determination of them. Another proposition: Looking at it from the standpoint, not of

the man who files a pauper affidavit, but from the standpoint of the ordinary industrious citizen who pays his debts and is able to continue to do so, it is of the utmost importance that the expense of repeated trials, especially the expense of repeated trials in the federal courts, should be obviated.

It seems to me, therefore, that the recommendations of the committee in this report are along the right lines and will tend most effectually to remedy the evils, which are so apparent.

Samuel C. Eastman, of New Hampshire:

Two questions are before the American Bar Association at the present time at least two have been argued. The first and really the question which is now before the meeting is on the amendment proposed by the gentleman from Texas. That has been very little discussed, but the substance of the section here has been discussed, and the amendment has been overlooked.

I beg leave to call the attention of the meeting to the fact that while I sympathize entirely, as I understand the other members of the committee do, with the position taken by the gentleman from Texas, still it is our opinion that the amendment does not alter the bill. Everything that is proposed by the gentleman from Texas can be done now as the bill stands. Of course, if a judge in the trial of a case so far forgets his duty as to charge the jury grossly and improperly, that would be the occasion for a new trial, because that goes to the whole substance of the case, and the court above could not say either that judgment should be entered upon the verdict or upon the point reserved, because neither would be conclusive under those circumstances, and it would be the duty of the court before whom the question came to send the case back for a new trial.

M. A. Spoonts:

Will the gentleman allow an interruption. Why not make that matter clear in the bill?

Samuel C. Eastman, of New Hampshire:

We think it is clear now, and that the language proposed by the gentleman from Texas would not make it any clearer. The

language used by the committee was adopted after careful consideration and in the expectation that it would accomplish precisely the result that the gentleman from Texas asks.

I ought, perhaps, to stop here, because that is the question that is now before the meeting; but as the other question has been discussed, I will say a few words upon it. This section has been taken to read as if the trial judge was obliged to submit to the jury any question that was presented to him on the trial. The language of the bill is "The trial judge may in any case submit," etc. If the trial judge is of the opinion that the question presented by the pleadings or by the counsel in opening the case is so clear that he ought to grant a non-suit and not allow the case to go any further, it would still be his duty and he would still have the right to order a non-suit. This bill does not oblige the court to go on and submit every question, however trivial or ill-advised it may be, and with however little foundation it may have upon the facts, that counsel states are going to be presented to the jury; but the judge may still order a non-suit or dispose of the case in any way that he could without this bill, and reserve the question of law.

This, it seems to me, answers the position that was taken by the gentleman from Kentucky. He gives the proposed section here more force than it has, and more than the committee which recommend the section for your consideration ever intended that it should have.

S. S. Gregory, of Illinois:

I differ with the very able committee on this subject with some diffidence. It seems to me that this section in the amended form-which I fully agree with the gentleman who has just taken his seat is the same as in the form it is now-is inconsistent with the practice which has obtained in the courts of this country for many years, and which on the whole has tended to the attainment of substantial justice. I think in order to understand the change that is proposed by this law it would be well to recall what the common law is as to special verdicts, and that I understand is the rule as it now obtains in the federal juris

diction. At common law a jury in any case instead of rendering a general verdict may return a special verdict in which they shall find all the facts in the case specially, and upon the entry of such verdict it becomes the duty of the court to pronounce such judgment as the law requires. Now it is proposed by this bill to leave it in the power of the court in any case to direct a special verdict. That takes from the jury the power in every case, where the court so elects, to render a general verdict. This section is apparently in terms applicable alike to civil and criminal proceedings, and it would be entirely competent under this section for a federal judge to do exactly what Mansfield did in the case of criminal libel where Erskine earned immortality in defending the right of trial by jury, compel the jury to find the fact as to whether the defendant was guilty of publishing the libel and deny to the jury the right to pass upon the guilt or innocence of the accused, and then enter judgment as the court might deem proper upon that special verdict.

Gentlemen, if this section is adopted you strike a blow at trial by jury. I will not discuss the first section, although since Mr. Eastman referred to it I may say that under the provisions of that section, no matter how erroneous the charge of the court is, no matter how concededly unsound his ruling upon every question of law submitted on the trial, in any case, civil or criminal, you have no right to redress on error unless the court hearing the writ of error and opening the record, and doing what no federal court ever has done in a law case, or can do under the Constitution of the United States-re-examining the question of fact tried by the jury-shall say, not merely that the trial court has denied to you every right which you were entitled to under the law, but upon an examination of the evidence shall declare that the verdict is against the weight of evidence. Everything that is sought to be accomplished by that is accomplished under the present practice under the rule that error without prejudice does not reverse, and every man of any extended experience in the tribunals of the nation knows how difficult it is upon the points which my learned friend, Judge Allen, of Kansas, referred to, to procure a reversal either in the Supreme Court or in the Court of Appeals.

If the great and laudable purpose of this bill were to abolish pettifogging, as Judge Allen seems to think, and if I could feel sure that it would result in that end, I should certainly be in favor of it; but that rests with individual members of the Bar; and it is no small part of the high duty of this Association, embracing, as I believe it does, the very flower of the American Bar, to cultivate those lofty traditions and that high spirit of professional conduct which shall in the most effective way minimize and reduce these evils of which there has been just and popular complaint.

Charles W. Smith, of Kansas:

It seems to me that the arguments of those opposed to this proposed law are based upon the idea that they wish a jury to have the power to find the facts, which I understand is the only prerogative of a jury, and also to apply the law in the particular case to those facts.

Our modern practice, while it has assimilated to that condition, is an error. I do not believe it would be taking away the right of trial by jury to say that a jury shall find only the facts and that the court shall apply the law to those facts. The special verdict recognized and upheld under the common law has been enlarged into the general verdict in which the jury under the instructions of the court as to the law applicable to the evidence returns a general verdict finding both upon the facts and the law. I do not believe this is in the interest of justice in many cases. The jury should not be permitted to apply the law in a particular case to the facts, but that should be left to the court itself. Only in that way can we always obtain justice in the trial of law suits. Jurors in some classes of cases will absolutely disregard the instructions of the court. I remember talking to a young lawyer who had a case against a railroad company in which notice of the injury alleged was necessary as a condition precedent to recovery, and the court so instructed the jury. This young lawyer told me that as he was passing by the room where the jury was deliberating that question was being discussed; the foreman of the jury was