It is not enough that an error has been committed or a number of errors committed, the judgment must stand because the unfortunate victim cannot demonstrate what the verdict of the jury might have been had the case been properly tried.

Let us consider for a moment the sound rule which it is proposed to set aside. If you will look at the U. S. Digest you will find three principal cases in the Supreme Court where the rule is laid down which it is sought to have repealed. They are Deery vs. Cray, 5 Wallace, 795; Vicksburg R. R. vs. O'Brien, 119 U. S. 99; and Mexia vs. Oliver, 148 U. S. 664.

In Deery rs. Cray an important deed was erroneously refused. The court said:

"It is claimed that if we shall find this deed to be valid, we must affirm the judgment, although we may find error in the previous ruling of the court; upon the ground that this conveyance shows that plaintiff has not title to the land, and that therefore such error is without prejudice to her rights. concede that it is a sound principle that no judgment should be reversed in a court of error when the error complained of works no injury to the party against whom the ruling was made. But whenever the application of this rule is sought, it must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the party's rights. In the case before us this is not so clear. The plaintiff, by reason of the error of the court, had never been permitted to introduce the first step in the proof of her case. She had no interest in offering to show anything which might avoid the force of the deed read by the defendants. If she could have proved it a forgery it would have done her no good in this suit, because she had failed under the erroneous ruling of the court to make out a prima facie case for herself. We cannot assume here that she might not have successfully avoided the effect of that deed if the court had given her a standing in the case which would have made it avail her to do so." In the O'Brien case a physician's certificate was erroneously admitted in evidence. The court said:

"We are unable to say that the defendant was not injuriously affected by the reading of the physician's certificate in evidence. It is not easy to determine what weight was given it by the jury. ... While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was committed, it is well settled that a reversal will be

directed unless it appears, beyond doubt, that the error complained of did not and could not have prejudiced the rights of the party."

In the Mexia case a defective power of attorney was improperly admitted and the language of the court in reversing the judgment was similar to that already quoted.

Now if this so-called reform means anything, it means that these and similar cases were wrongly decided; that improper evidence may be ignorantly or imprudently put before juries with all the weight of judicial sanction and unjust verdicts be rendered thereon, all so that we may have speed at all cost in the courts.

I predict that such a so-called reform will serve to increase litigation by encouraging adventurous lawyers and litigants to try their chances in the courts.

Will some one tell me just how many errors are to be crowded into a trial before the victim of an unjust verdict can get a rehearing under this proposed legislation? The bill proposes no limit in that direction. The record may be sprinkled with erroneous rulings and yet the erroneous verdict based thereon must be affirmed because the appellant cannot possibly demonstrate the effect of any one of these on the secret deliberations of the jury.

The number of second trials compared with the number of cases disposed of in court is comparatively few, perhaps only one to a hundred, and yet to reduce this small number a little more it is proposed to introduce into our courts this great evil of unfair jury trials.

It will not do to reply that the courts will still see that substantial justice is done and will grant new trials in proper cases. They are doing that now. They have always been doing so. They have considered that substantial justice requires that a new trial be granted in jury cases where the party has not had a fair trial. Now they are to have a legislative mandate to cease that good work. And yet, most important of all, the right of a litigant in a jury case is his right to a fair trial. The bill proposes to deprive a party of that right in the interest of speed.

Consider what is proposed. A party is brought to court to meet his adversary's case as disclosed in a written pleading. The whole matter is to be disposed of in the course of a few hours. On the Bench is a weak, inexperienced or partial judge, or one who happens totally to misunderstand the case. The pleading may be misleading; evidence may be improperly received against his objection; the trial judge may erroneously charge the jury, and a verdict is rendered against the party thus abused. The jury hear the party object in vain; his objections are one by one overruled; they are led to ignore or misconceive some of the real issues; they are prejudiced against the party because of his objections to the court's rulings; an unjust verdict is the result, but how can that be shown? The case comes up for review, the Appellate Court is powerless to remedy the injustice in the face of this statute. It will not do to deny that this will be its effect if enforced. It can have no other. The tendency of this new law will be gradually to bring about just this result in an increasing number of instances. It will tend to carelessness on the part of trial judges; to the over-riding of inexperienced and honest counsel by abler and less scrupulous trial lawyers. That class of lawyers who are willing to take a chance of misleading courts and juries, of introducing improper evidence, of securing improper instructions will rejoice and thrive. In the end it will promote litigation and appeals instead of decreasing either.

The whole theory and aim of the bill is wrong. The object of this Association should be to make the practice of the law more scientific, not less so. The ascertainment of truth in matters of controversy is not an easy or superficial task; it is a difficult one. Here we have seriously proposed that a result may be correct while every process used to obtain it is erroneous. Such a proposition is a manifest absurdity. Let us speed litigation, but let it be by proper and appropriate methods; by improving the character and quality of our lawyers, of our juries, and of our judges; by simplifying procedure; by increase in the number of judges; by increasing their salaries, so as to get abler men. Let us hurry the case to trial and speed the appeal; but

never hurry or shirk the actual trial thereof, nor by indirect methods cut off the review, as proposed here.

I move as an amendment these words at the end of the resolution:

"Provided, however, that the several bills relating to Procedure in United States Courts be amended so as to provide that new trials may be granted for error where it appears that the same either has or may have injuriously affected the substantial rights of the parties."

T. H. Reynolds, of Missouri:

I will second the amendment for the purpose of getting it before the house.

W. A. Ketcham, of Indiana:

If it is proper to suggest an amendment to the amendment, I would move to strike out of the amendment, the words "either” and "may have."

Samuel Parker, of Indiana:

I will second that suggestion.

Robert G. Street, of Texas:

This whole matter has been acted upon by the Association at former meetings and fully debated, and these bills have been recommended. Not only so, but the amendment of the gentleman from New York has been offered by him before and voted down. Now I raise the point that the amendment to the amendment and the amendment itself are not in order. Let us proceed with due regard to parliamentary procedure.

The President:

Inasmuch as these are rather revolutionary times, the Chair is inclined to overrule the point of order. I think the Association can take up the matter de novo if it desires to do so.

We will first vote on the amendment to the amendment, offered by General Ketcham. All in favor of General Ketcham's amendment will say aye; opposed, no.

It was lost.

The question now recurs on the amendment offered by the gentleman from New York.

John M. Olin, of Wisconsin:

May I say that we have in Wisconsin almost identically the law that is proposed in these bills. In fact, we have had substantially that law since 1858, and I think it has been on the statute book in New York State, if I am correctly informed, in the code.

Alfred B. Cruikshank, of New York:

The gentleman is mistaken.

W. A. Ketcham, of Indiana:

It is so in Indiana.

John M. Olin, of Wisconsin:

Well, these dire results predicted by the gentleman from New York have never come true in Wisconsin.

J. G. Slonecker, of Kansas:

We have in Kansas this provision almost word for word, and I have never yet heard a lawyer complain that it prevented his getting his case reversed if the circumstances of his case justified it. If gentlemen do not have this act before them they might misunderstand it, and I want to read what it says:

"No judgment shall be set aside or reversed or new trial granted by any court of the United States in any case, civil or criminal, on the ground of misdirection of the jury or improper admission of evidence or improper rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made after an examination of the entire cause, it shall appear that the error complained of has injuriously affected the substantial rights of the parties."

I think that ought to be the law.

Frederick N. Judson, of Missouri:

It seems to me that this is a very serious matter. These bills were prepared, as I understand, after investigation by a special committee of the Association, and they were carefully considered. as measures in the direction of meeting the general dissatisfaction with the administration of justice. The bills were carefully