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The Green Bag

the other has been followed. In conse quence four per cent of the points decided annually by our courts of

cases involving construction of man dates of which our reports show so many. Wherever possible, the review ing court should be able to and should

review are points of appellate practice. In ten years, 1896-1906, our courts decided 2377 points of appellate prac

do its work completely. In the foregoing program I have

tice—-almost as many as the combined

said

points of Master and Servant and Muni cipal Corporations, or of Carriers, Con stitutional Law, Corporations, Negli gence and Sales added together. Indeed appellate procedure is by far the bulkiest single topic in our digests. This is

which presents many features demand

wholly unnecessary. Procedure on ap peal may be and should be as simple as procedure upon a motion. In aid of this proposition, two sub ordinate proposals may be suggested :

(1) So far as they merely reiterate objections already made and ruled upon, exceptions should be abolished; it should be enough that due objection was inter posed at the time the ruling in question was

made." (2) Upon any appeal, in any sort of

nothing

of

criminal

procedure,

ing special treatment, of the charge of the court, a subject to which forensic

subtlety, which once busied itself with the writ and later with the pleadings, now chieﬂy attaches itself, nor of dis

eovery.

Each of these is of great im

portance in procedural reform; but each would demand a separate paper, if treated adequately.

If some of the propositions in the latter portion appear radical, it should be observed that as to these, a practice act such as is proposed would not require that all of them be put in the form of ﬁxed rules and imposed on bench and bar at one stroke; rather the courts

would be empowered to give effect

cause, the court should have full power to make whatever order the whole case

to them, as the practice could be de

and complete justice in accord with substantive law may require, without

of such power became expedient. More over, nothing has been suggested which has not been tried and found practicable in some common-law jurisdiction. Let us remember that not England merely, but Canada and Australia, have put

remand unless necessary.

a

new

trial

becomes

There should be no occasion for the

veloped by rules of court and as use

00 Judicature Act (1873), rule 49; Kansas Rev. Code Civ. Proc.. §574; Gilbert. Act in Relation

these principles, and others more far

to Courts, §l703.

reaching, into actual practice.