attorneys and their clients, consult the details and developments of the particular case, and direct therein the doings of whatever may seem best to promote the fundamental purpose of all action in advance of and preparation for trial. For example, he should seek to shape the pleadings so as to narrow and define the issues, and disclose the actual issues; he should grant, supervise, conduct examinations before trial, discovery of books, accounts, papers and the like, in the interests of justice and the full ascertainment of the facts. Most of the facts in relation to the subject-matter of an action are not in dispute; the ends of justice would be almost always served if these were required to be agreed upon, reduced to written stipulations and thus embodied in such form that the trial court and jury would have before it the undisputed facts in such definiteness and accuracy of form as to afford a good starting-point for the consideration of the questions of fact which are disputed. For example, in the case of an action against a street railway company for a crossing accident, the physical facts as to the surroundings at the intersection, the vehicles which figured in the accident, and the like, ought to be made the subject-matter of well-formulated statements and suitable photographs, as better basis for the guidance of the jury when it takes up the questions really disputed.

QUESTIONS WHICH SHOULD NOT BE IN ISSUE AT ALL

There are many matters now left within the category of disputed questions as to which the judge or commissioner ought to prepare the way to place at the disposal of the eventual trial court the results of better administrative handling of the case, with the objective of fairly ascertaining and fully disclosing the true facts ever in mind. For example, thousands of cases tried in the courts of this city each year turn upon the question of the conformance of goods delivered to sample furnished or to trade description quoted. These questions are of necessity dealt with, at present, in a court room trial, in the most crude, offhand, inaccurate manner; there is a wide and inexcusable margin of error; time and again the efforts of adroit, unscrupulous counsel and glib, lying witnesses completely fool the jury on such issues. Under a proper system such questions or cases turning on such questions alone, would hardly ever reach s jury at all. They are questions, in the first instance not for a jury or court at all, but for a bureau of standards, trained in analysis.

familiar with trade formulas, expert in trade standards. To such a body the judge or commissioner should have power to refer a case involving questions such as I have indicated, and its expert, impartial, disinterested report upon the facts, for example, as to the ingredients of the sample furnished and of the goods delivered, should be thus made available to the trial court, if the case ever came to the point of trial. In point of fact no large proportion of commercial controversies would ever survive such a scrutiny as I have indicated in the foregoing paragraphs; the system would sound the death-knell of "strike" and "hold-up" litigation. Any system which lessens the chance of unmerited victory and decreases the possible effectiveness of the efforts of counsel to lead the trial away from the actual facts, the real merits, will greatly decrease the volume of baseless litigation. Any system likewise which leads to generous mutual disclosure, in advance, of the documentary and other evidence, and the legal and other contentions, on which the opposing claims are mutually based, will have the greatest possible effect in bringing about settlement, through compromise, concession or otherwise. As the litigants and their counsel find the controversy reduced to its lowest terms, they will find surprisingly little left to litigate about, aside from questions of law, which they will find the right sort of counsel can determine for them just about as well, and much less expensively, out of court as upon a court room trial.

There are many phases of betterments which might prove of aid to the administering of justice, each of which would be suitable subject-matter for a whole article by itself, and therefore can only be indicated within the permissible limits of this article. For example, upon the whole matter of so-called "expert" testimony, a better administrative organization of our judicial mechanism, based upon the fundamental principle which runs through the present discussion, would enable the trial court and jury to have the aid of really expert information, the advice and counsel of disinterested," qualified, well-informed specialists, whose trained observation and impartial opinions would be of real help to the jury, and would put to rout the scandalous brigade of hirelings who so often masquerade as "experts" in aid of whichever side unconscionably brings them into court. Radical change in the whole basis of "expert" testimony is one of the most important of the potential betterments in

procedure which would make for accuracy and acceptability of the results reached through the administration of justice under law.

THE WORKABLE IDEAL OF OUR JUDICIAL SYSTEM

The enforced limits of space and time forbid a similar discussion of the mechanics of court room trial and the mechanics of appellate review, although the queries already advanced have, of course, a vital bearing upon the entire subsequent history of a suit thus started. The workable ideal of our judicial system ought, in my judgment, to be as to every civil action:

One prompt, fair, impartial trial on the merits, with full disclosure of the actual facts, and then, if either party feels aggrieved, one appeal, to a court vested with plenary power to correct, and not merely detect, error and conform the result reached below to the requirements of the correct legal rule as maturely conceived by the appellate tribunal.

Where there has been trial by jury below, and the error below has been plainly one of law, with the disputed questions of fact separably determined, the appellate court may well, in pursuance of this basic objective, be vested with broad power to award final judgment according to the facts as found and the law as conceived by the appellate court. Where the defect disclosed on appeal is one of formal or record proof, involving no question of weighing the credibility of witnesses, the appellate court may well be vested with power to permit the remedying of the defect without reversal of the whole judgment. Where error has occurred only as to one phase of the issues of fact in the case, the appellate court may well be vested with broad power, in its discretion, to remand the case for re-hearing in the Trial Court upon such phase of the issues and not upon the whole For example, if the question of liability has been determined in a negligence suit, but error has taken place on the rule of damages, need the whole cause be invariably re-litigated, or may not a refinding on the question of damages alone be directed? Of course, on many of these things, we are still a long way in this country from the practicable ideal above quoted, but the time may not be far distant when the young men who are now coming to the bar will find themselves confronted with the task of working out the details of fulfilling an emphatic public demand in these respects.

case.

Let no one think that this article has been inspired by any lack of appreciation of the work of our courts and the importance of the

proper discharge of the judicial function in a democracy. There is in my judgment no task more fundamental, no phase of public service or professional activity to which a young man may more satisfactorily devote his energy, vision and enthusiasm. The law I conceive to be a great, vital, living concept of human relationship, based on standards of fairness, reason, practicability, and effectiveness, such as have entitled it to be called "crystallized common sense, and withal fair and logical in its workings and applications. The mystification of legal procedure robs the law of its basic "common sense," and its anomalies rob it of fair, even, logical application. The task which I have outlined is therefore essential to the very life of the law. We make a mistake, however, when we conceive the administration of justice under law to be a task entrusted to courts alone. Many vital aspects of legal administration are now entrusted to regulative commissions and quasi-judicial tribunals which have been given more adequate, suitable organization because emancipated from what has thus far been our tradition as to tribunals called courts. Every young man at the bar, whether or not in a judicial office, and whether or not identified with any of those newer instrumentalities of juridical administration which link up so intimately to the whole topic of betterment in our courts, will find ample opportunity for full use of his talents and constructive abilities in the days and years that are ahead. This article is prolix and fragmentary, but if it and its companions in this volume can have any part in persuading men of the profession resolutely to "keep their eyes on the ball" and measure up to the major task which the public will shortly impose in earnest upon the bar and the courts, they will no doubt have fulfilled their purpose.

THE WORKING OF THE NEW JERSEY SHORT PRACTICE

ACT

BY MARTIN CONBOY.

There are two Short Practice Acts in New Jersey, one for courts of law, the other for the court of chancery. The former became a law on March 28, 1912, and consisted at the time of its adoption of 34 sections and 83 rules. Since then the number of rules has been increased to 180, but all except 13 of the additional 97 were in force before the practice act was adopted. The latter became a law on March 30, 1915, and consists of 13 sections and 65 rules. It is with the working of the former that this paper deals. "The wall of separation between legal and equitable relief” is still maintained in New Jersey. The Supreme and Circuit Courts administer what we call law as distinguished from equity and the court of chancery grants equitable relief. The separation is maintained not only by a difference in courts, but also by a difference in judges. The law courts are presided over by justices of the Supreme Court and the circuit court judges. The jurisdiction of the Supreme and Circuits Courts, so far as ordinary law actions are concerned, is identical. The chancellor signs all decrees in chancery and the work of the court of chancery is conducted by the chancellor and the vice chancellors. There is, therefore, a complete separation between legal and equitable relief as regards procedure, courts and judges. The court of errors and appeals constitutes an exception to this extent: All appeals, whether from judgments at law or decrees in chancery, go to that court. The chancellor presides except when the appeal is from the Court of Chancery and then he does not sit and the presiding officer is the chief justice of the Supreme Court. The court is constituted of the chancellor, the chief justice and justices of the Supreme Court and six judges "specially appointed."

I have at the outset referred to the maintenance of the separation between legal and equitable relief in New Jersey, because I consider it of importance in this respect, viz.: it obviates the difficulty that code states labor under in attempting to make one set of rules for courts administering two kinds of remedies.