Index to Periodicals Practice. "The Trial of Cases in Pennsyl vania." By Henry B. Patton. 60 Univ. of Pa. Law Review 224 (Jan.). Deals with exceptions, nonsuit, points for charge, closing addresses, charge of the Court, the record, the jury, verdict, new trial, etc. Procedure. "Continental and Common Law Procedure Contrasted — An Interesting Side light on Reform in Pleading and Practice." By Axel Teisen. 74 Central Law Journal 22 (Jan. 12, 45 (Jan. 19 ). The German jurist whose opinions are aired in this report of a dialogue supposed to have taken place in a Philadelphia club thus expresses himself on the subject of the "free theory of proof": — "If justice, substantial justice is the object of the civil courts, it follows that the procedure must be made as simple as possible, so that it does not become a game where the most tricky has the best chance to win. If this is the raison d'etre for civil tribunals, it follows that a civil trial is not war, but its negation. If a civil case is a peaceful arbitration and not a war measure, it follows again that you must leave to the parties the absolute right of disposition over their case, leave them to present it and prove it in their own way, reserving to the court, after the evidence has all been put before it, to decide whether it does prove what it was intended to do. . . . "There must, of course, always be some rules for the manner of introducing evidence, mainly amounting to this, that when you have once commenced you must, under all ordinary cir cumstances, continue until you have all the evidence in which you expect to produce, and cannot be allowed later to introduce other evidence which you might as well have pro duced in the first instance; this will not pre vent the taking of evidence in perpeluam rei memoriam, or the introduction of later discov ered evidence, under proper safeguards. But all your rules for laying a foundation for evidence may be discarded; it is left to yourself, and to your own logic and judgment in what order you desire to produce your evidence. . . . "I have the greatest admiration for your system of civil procedure as a complete structure, for the tremendous amount of learning, keen ness of thought and ingenuity collected therein; also for the invaluable services that system has, in times past, given to the Anglo-Saxon race and indirectly to all mankind. But my admiration is rather of an architectural nature, if I may use the expression. . . . The better a thing is done in the beginning, the better chance it has to survive for a long time, and if very excellently done, it even has a chance to survive its own usefulness. This, I am afraid, is what has happened to your system of civil procedure." "The Problem of Reforming Procedure." By Henry Upson Sims. 21 Yale Law Journal 215 (Jan.). "The nature of a suit at law and that of a suit in equity are essentially different. And that is another fundamental principle which has been
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overlooked by many advocates of a uniform procedure. To accomplish by the enactment of a statute 'the abolition of the distinction between actions at law and suits in equity,' and at the same time to retain our English system of law is as impossible as to abolish by statute the points of the compass." This article should be read because of its learned review of the history of forms of pleading and the various attempts to reform them. Professional Ethics. "The Limits of Coun sel's Legitimate Defense." By Dean John H. Wigmore. 2 Journal of Criminal Law and Criminology 663 (Jan.). "Theoretically, the accused's counsel acts to secure a fair trial for his client, and therefore to free the latter if he is innocent. Practically we know that the regular criminal practitioner fights to free his client, guilty or innocent. There is here no discrimination between the rich or the poor offender, the hitherto respectable or the hitherto under-world man — the Hines and Walshes, or the McNamaras and Ruefs. Their counsel fights to the last ditch. Can the law and the community afford to permit this? Is there no way of putting a limit on it? For it is surely breaking down our system of criminal justice. It tends to foster the technicality so much censured. It forces the state prosecutor to fightequally without scruple. It drives almost all honorable lawyers out of a field where duty calls them and the community needs them. It is one of the most repulsive features of our present system. "Is there no relief? Must we wait for a new generation slowly to bring a radical change of thought and custom? Will the institution of a state defender (to oppose the state prosecutor) furnish a speedier solution? These are trouble some questions which must be answered before long." Referring to his course in the McNamara case, Clarence Darrow said, "The boys are not murderers at heart; they thought they were just fighting a battle between capital and labor. Dean Wigmore pertinently observes: "What the public now needs to know plainly is, whether there is any lawyer or class of lawyers, now al lowed in our courts, who sympathize sincerely with this thug doctrine and will dp anything to save its followers. Let us air this whole issue before public opinion. Let Clarence Darrow, or any one else who believes it, avow it and defend it. If our criminal system is being ad ministered today by an appreciable number of able and intelligent lawyers who hold that view, let us all know it. Public opinion will then take a hand and settle the issue. If it can stand that doctrine, so be it. If the public verdict repudiates it, then let some measure be taken for eliminating its adherents from the ranks of the bar, and for making the defense of accused persons an occu pation consistent with self-respect and the service of justice." Public Officers. "Recovery of Salary by a De Facto Officer, I." By Gordon Stoner. 10 Michigan Law Review 178 (Jan.).
