Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-01-31

go over all the long stretch OF open turnpike
where, beyond all doubt, it had correctly ana
safely Travelled before. A man of good intelli- |
gence, but not learned in the law would call
this an absurdityi and he would call it by the
right name 1t is like tearing d massive brick
house down to its foundations and building it
all over again, on account OF defect III a board
partition in the attic.
The Judge admits that the application of
remedy is fraught with difficulties with re-
spect to cases tried byiuries, and in such cases
would require radical constitutional amend
ments, He excerpts from his article, by
special affirmation, all reference to crimi-
nal practice, and states that in most States
the majority of civil cases are tried with
out .iuries
The partial remedy he suggests-the
sending up of the whole case. except where
the parties stipulate otherwise-is open to
the objection, that while it is most desi-
rable to have the appellate Court view the
whole case, and ascertain whether, upon
broad view of the whole matter. the final
| judgment was right or wrong, it would en-
tail great expense in writing or printing a
transcript. To this it is replied, first that
in many instances the whole case clearly
hinges upon one or two points, and only
short statement is needed. Secondly.
in many other instances the attorneys could
agree upon comparatively short
digest of the evidence. which would
I So ,.ly he Ill
if it be admitted that every word
must be Transcribed and sent up, still the
cost will only be a trihe 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 re-
traced, and would be free from the harrow
ing doubt, If it were only done when It's
done -
But it may be objected that the appel
late Court is not situated to properly dis
pose of case when it has only printed
transcript to deal with, and cannot 50 well
weigh the testimony of witnesses it cannot
See or hear.
But this objection would not BE a controlling
one even lfthe case was being heard as III he Hii
| prjIS Court, upon an original trial. Under the
old equity practice cases were heard upon depO-
sitiOns, and in all the Federal Courts to-day the
| Circuit Judge, in such cases does not see or
| hear the witnesses and 1t 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 Court where the witnesses lreTe
seen and heard And the present rule. in every
appellate Court in the nation Is that
the decision of the Court below, on
conflict of evidence, viii not be inquired into
or disturbed. There Is conceded to
such Court the capacity to look
through contradictory testimony; to weigh the
conflicting interests of parties and witnesses to
understand the secret springs of human motives
and actions; to detect naked perjury. false ex-
aggeration, or fraudulent conCedlment; to know
what circumstances are important and what are
not; and 10 keep the whole of a complicated
case before the mind like picture, and see in
it the true and material facts
Applying this rule to the proposed rem
edy, and it would seem clear that the OBJ
lection taken has not sufficient weight.
The essayist admits that the proposed new
system would require of Courts of last re-
sort something more of solid thinking in
some instances, to determine what iudg-
ment would be right, instead of getting
rid Of the whole thing by merely saying
that the Judgment of the lower Court was
not right But there would be substantial
gain in taking largely the time devoted to
writing opinions and giving it to the doing
Of justice in the cases at bar The accumu- |
lation of "opinions in books of reports is
becoming alarming-it is, indeed, already |
monstrous, and, as the Judge insists if it !
goes on upon the basis Of the present ratio |
of increase Of production, one may mathe
matically estimate the time when there will |
be law reports sufficient to cover the
entire surface of the land. At this
point he suggests, with grim humor, that
reveals his faith in still another reform the |
REcoRD-UNIoN has diligently advocated, |
that cremation will probably be the only |
remedy for this as for another evil"
A final objection is answered. Suppose
that the lower Court has erred in receiv- |
ing or rejecting certain offered evidence
what then should be the course of the |
higher Court 2" The reply is made that
the Supreme Court, having the whole case
before it, can determine whether the ex-
cIusion Of evidence enormously admitted |
would have changed the Judgment If it
desires the opinion Of the Judge below on
that point il could remand the case with
an order 10 exclude the obnoxious ey1-
dence and render judgment anew. If the
error lies in rejecting offered evidence, he
holds that the remedy is plain. Assuming !
the party to be able to prove what he Of
fered to prove, if the Judgment should not
be changed by such proof, then it should |
stand Fit would alter the judgment let
the case 90 back to have the lower Court |
hear the rejected evidence and the reply
to it, and then again render its Judgment |
But, in the name Of common sense.
and in the interest of things temporal and |
not eternal, exclaims the Judge, why |
should the testimony Of nineteen witnesses
be taken all over again because a certain
question asked of the twentieth witness
was improperly excluded? And all the
lay world Will hold up its hands and ask
also, Why, indeed ?"
The essayist finds time to but glance at
the subject of new trials in jury cases, but
asserts that the powers conceded to Courts
has already destroyed much of the sacred |
right of trial by jury" III Judge can dis
regard a verdict as wrong, step further
will enable it to say what verdict would |
have been right. ,Practically, this sugges-
ton Of Judge Mcfarland would work the
abolition of the jury; but very |
large part Of the thinking world would ap
plaud such result. We are not prepared