MODERN ENGLISH PROCEDURE the third time to object, the judge sharply directed him to take his seat and informed him that if he was guilty of again interfering with the business of the Court he would •commit him for contempt. This was a par ticularly arbitrary judge and is an extreme case, but counsel do not wilfully put im proper questions to witnesses or seek to elicit palpably inadmissible evidence. An offence of this kind would injuriously affect standing of counsel. As there is no bill of exceptions there is no temptation to cast a fine-mesh drag-net in the hope of catching a sprat which may stick in the maw of a judge. (6) IMMEDIATE JUDGMENT. In quite 90 per cent of the causes heard by a judge with out a jury, judgment is given the moment the evidence is closed and counsel have finished their arguments. In the compara tively few cases where judgment is reserved it is delivered within a few days. (7) PRINTED BRIEFS NOT RECEIVED. Neither in the court of first instance or in the Appeal Court when judgment is reserved are counsel permitted to supplement their oral arguments by filing a printed brief of argument and authorities. This practice is absolutely unknown in England. If counsel cannot, while upon his feet, argue his points so as to convince the court his case is hopeless. Great patience is shown to him, and the authorities he cites are carefully examined by the court in his presence. If they are not in point the court does not hesitate to tell him so, or if he is arguing an irrelevant or otherwise untenable position he is quickly invited to abandon it and seek another and if possible better one in support of his con tention, but in no case is he permitted to express himself in print. This relief should be appreciated in America not only by busy counsel who under the present system must necessarily spend a large part of their valu able time in the compilation of voluminous treatises on abstract propositions of law sup ported by bewildering authorities culled from a boundless area, but by conscientious
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judges who after a hard day's work on the bench are compelled to sit up half the night in working their way through these socalled "briefs." An English judge whether puisne or appellate generally finds his duties done when he rises for the day. (8) INFREQUENT REMANDS FOR NEW TRIAL. The Appeal Court has, over any action or matter brought before it on appeal, all the powers, authority and jurisdiction con ferred by law on the trial judge. It can amend the pleadings, enlarge time, receive fresh evi dence, draw inferences of fact, direct issues to be tried or accounts and inquiries to be taken, and generally it has power to give any judgment and make any order which ought to have been made in the court be low. Even if there was error at the trial the court will not grant a new trial unless in the opinion of the court substantial wrong or miscarriage of justice has thereby been occasioned in the trial. If by reason of error a wrong judgment was entered below, the Appeal Court will not in reversing that judgment remand the case for a new trial, but it will enter such judgment as in its opinion meets the justice of the case. How this practically works may be demonstrated by the fact that in 1904 the Appeal Court heard 555 appeals. Of these 182 were allowed, 339 were dismissed, and in 34 the judgment or order of the court below was varied. But of the 182 allowed, in cluding applications for new trials and appeals from final judgments, only seven were remanded for new -trial before a jury or for the trial judge's further consideration. Reference has been made to the fact that no briefs are received and that judgment is delivered the moment the oral arguments have been submitted. Of the 555 cases argued last year in only 50 was the judgment of the court reserved. No figures are im mediately available to show how long these cases were so reserved, but it will be within the mark to say that the average was not more than seven days. (9) TAXING COSTS AGAINST THE LOSING
