Recommendations as to Judicial Procedure in actions tried before a jury, but has applied the rule dealing with questions of evidence. For example, in Bank of British North America v. Delafield, 120 N. Y. 410, the case had been tried at special term. The judgment was affirmed at the general term, but the Court of Appeals reversed the judgment upon an exception to the admission of a document which the Court had received, giving the following reason (p. 419) : "The question is so close, we cannot say the defendant suffered no harm from the erroneous admission of the letter." What the Court would say if the proposed amendment should be adopted would be just the reverse— "It does not appear that the defendant suffered harm from the admission of the letter. On the whole case we are of opinion that the judgment for the plain tiff was right upon the merits, and we therefore affirm it." In equity cases, where the trial is before a judge without a jury, there can be no possible good reason for the rule which prevails in this state. Experi ence in federal courts shows that ample justice is done to the parties by the method of procedure which prevails in admiralty and in equity. It is true that in the federal courts in equity the testimony is taken before a master or commissioner, and this no doubt is a disadvantage. But in some of the states where equity practice still prevails in the state courts, as, for example, in New Jersey, the issues of the case are tried before a vice-chancellor, the wit nesses testify orally before him, and he decides the case with the great advan tage of having seen them and heard their testimony. This reform Field in troduced into the trial of equity cases in New York. Experience shows that the granting of new trials upon issues of fact is gen
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erally a source of injustice. The lapse of time obscures the memory of the wit nesses who remain. It often happens that an important witness has died, and the reading of his testimony on the first trial is no substitute for the benefit which was derived from his personal appearance. It often happens, also, that a defendant against whom a judgment has been recovered becomes insolvent before the new trial, and the security which he gave upon the first appeal has become of no avail, owing to the re versal of the first judgment. And beside all these objections, the radical objec tion to the new trial is that both parties have already had a hearing; they have been put to the expense of employing counsel upon that hearing; the whole machinery of the courts has been em ployed to administer justice between them. What possible reason can be given for granting a new trial in such cases? Why should not the Appellate Court proceed to render final judgment in all cases, subject to the right to move for a rehearing on the ground of newly discovered evidence, or for some similar reason? Such motions have always been admissible in courts of equity, and I would not deprive litigants of the right to make applications of that sort. In short, I would reverse the rule in Griffin v. Marquardt, and would never permit a new trial unless it appears affirmatively that the interests of justice demand a rehearing. Nemo debet bis vexari pro una et eadem causa. The reason for the disposition of courts to grant new trials in cases tried before a jury probably rests upon the impression that under the Constitution of the United States and the constitu tions of most of the states, there is some peculiar sacredness in a trial by jury. No doubt the right of trial by jury is guaranteed by these constitutions. But
