Page:Cardozo-Nature-Of-The-Judicial-Process.pdf/100

Rh conceptions of contract and obligation have broken down before the slow and steady and erosive action of utility and justice.

We see the same process at work in other fields. We no longer interpret contracts with meticulous adherence to the letter when in confict with the spirit. We read covenants into them by implication when we find them "instinct with an obligation" imperfectly expressed. "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal.” Perhaps it is in the field of procedure that we have witnessed the chief changes; though greater ones must yet be wrought. Indictments and civil pleadings are viewed with indulgent eyes. Rulings upon questions of evidence are held with increasing frequency to come within the discretion of the judge presiding at the trial. Errors are no longer ground for the upsetting of judgments with the ensuing horror of new trials, unless the appellate court Rh