proposition, not of law or of logic, on which the determination of the tribunal is to be given." Wigmore on Evidence, § 1.

Evidence may be real, testimonial, or circumstantial. This is a broad field of inquiry. Not all evidence which satisfies the general requisites of relevancy is admissible. Relevant evidence is sometimes excluded because it is untrustworthy. Oral evidence of the contents of a written instrument is generally inadmissible. The best evidence of its contents is the document itself. The original writing must be produced, or its absence accounted for, before secondary evidence is admissible. Hearsay evidence is inadmissible, although there are many exceptions to the rule. A witness is frequently not permitted to state his opinion as regards the truth of certain facts in issue. Relevant testimony is sometimes excluded, not because it is untrustworthy, but because a rule of public policy forbids its admission. Parol evidence, tending to vary or contradict the terms of a written instrument, is generally inadmissible. A rule of substantive law forbids. There are a number of real or apparent exceptions to the rule. The process of eliciting the evidence upon the issues in a trial is therefore hedged about by a great many rules of law. With these branches of the law this book is not concerned. Here and there some detailed aspects of these rules present themselves in the cases.

At the close of the taking of testimony, the controverted questions must be decided. This determination involves the exercise of two functions: (1) The finding of facts; and (2) the application of the law to the facts. The facts will be found either by the court without a jury or by the jury. Where a court sitting without a jury decides the issues, the formal entry of judgment operates both as a finding of fact and as the application of the law to the facts. Sometimes the court will make a special finding of fact, separate and distinct from the entry of judgment. Where the trial is by jury, the jury will be directed to find the facts; that is, to make necessary inferences from the detailed evidentiary facts, and, in the event of conflicts in the testimony, to determine whose witnesses are to be believed. In a jury trial, the jury, as a rule, applies the law to the facts. The usual procedure is for the court to give a number of instructions to the jury which declare what the law is with respect to the various possible states of facts. The jury then determines what the facts are, and applies those instructions which fit the facts as found, and bring in their verdict accordingly. Sometimes the jury is directed to bring in a special verdict, which contains a recital of the facts only, in which case the court applies the law to the facts as found. When the jury finds the facts, and applies the law as given them by the court, the resulting verdict is called a general verdict.

Upon the return of a verdict, an opportunity is given to the trial court to correct errors which may have occurred during the course of the trial. This opportunity formally arises upon a motion for new trial, made by the losing party. The possible errors which may,

at this point, be urged as grounds for a new trial, in general, are as follows: (1) The erroneous admission of evidence; (2) the erroneous exclusion of evidence; (3) the giving of erroneous instructions to the jury; (4) the erroneous refusal to give correct instructions to the jury; (5) that there is a fatal variance between the pleadings and the proof; (6) that the evidence is insufficient to support the verdict; (7) that the misconduct of the court, of counsel, or of the jury during the course of the trial was prejudicial to the losing party. If, upon the argument for new trial, the court believes that any of these errors occurred, and if he believes that such errors were so far prejudicial that the losing party did not have a fair trial, a new trial will be granted. Sometimes the court will even enter judgment for the losing party notwithstanding the verdict. If the court overrules the motion, judgment on the verdict usually follows as a matter of course.

This action terminates the cause as far as the trial court is concerned. If the losing party is still of the opinion that substantial error occurred, he may take the case to a court of review, sometimes called an appellate court, or Supreme Court, and there urge the contentions unsuccessfully made in the court below. This procedure is sometimes called an appeal. Sometimes the action of the losing party in the court of review is called the suing out of a writ of error to review the action of the trial court. There are methods of review other than by appeal and by writ of error. In any event, the purpose is to get before the upper court a complete record of what occurred in the trial court, for the purpose of making the contention that the trial court erred in entering judgment against the appellant. Sometimes this party, instead of being called the appellant, is called the plaintiff in error. The party who won in the trial court is called the appellee, or the defendant in error. No new trial is had in the court of review. The cause is submitted on the record. The reviewing court has before it copies of all the papers filed in the court below, copies of the testimony, the verdict, judgment, and all other orders entered with respect to the litigation. Briefs of counsel for each party are filed, which present arguments in support of their respective contentions. The cause is then decided by the court, and to one of the members of the court is assigned the duty of preparing a written opinion. The opinion sets forth the reasons for the affirmance, modification, or reversal of the action of the trial court. These opinions are collected and printed in book form, and are called reports. The reports of the courts in the United States number several thousand.

SECTION 7.-JUDICIAL DECISIONS

It is to these decisions and to the argument advanced in support thereof that one looks, in the first instance, for the law applicable to any situation not specifically covered by statute. Even where

there is a statute, the decision of a court interpreting that, or some closely analogous statute, in the light of similar situations of fact, will be the index as to what the law is. This volume consists in a compilation of judicial decisions which develop the general principles of contracts, agency, negotiable instruments, partnership, and corporations.

A final word may be added with respect to the attitude with which one should approach the study of judicial decisions. This attitude. is determined by an appreciation of the nature of a judicial decision, by a knowledge of the data employed by the court in arriving at its conclusion, and also of the process of reasoning by which the result was reached.

As a practical matter to-day, the data employed by a court in deciding a legal controversy consist of former decisions of the same or other courts. The principle of stare decisis leads the court to assume, at the start, that the case then before them must be decided in the same way in which they have always decided such cases. Where a former decision by the same court can be found which is identical with the case then pending, the decision is readily arrived at. Where there is no such decision, the search among the precedents is for some case analogous on its facts and issues presented. The process of reasoning by which it is determined that a particular decision is analogous to the case at bar is a process of noting similarities and differences between the case at bar and the precedent under examination. If, in accordance with the established principles of inductive reasoning, the similarities strongly predominate, the former decision will be deemed to control the decision of the case at bar. The process of determining that a particular decision is analogous to a given case is not entirely a process of inductive reasoning. To some extent it is deductive. Where no former decision analogous on its facts and issues can be discovered, the first process of reasoning is, by induction, to discover some wider generalization of the law therein involved, a testing of the validity of this generalization by comparing it with other cases, and a final formulation of the generalization by induction. This generalization then constitutes the major premise for deductive argument. The minor premise will then consist in a declaration that the facts and issues in the case at bar fall within and are comprehended by the operative facts which constitute the subject of the major premise. The truth of this subordinate assertion must have first been proved, largely by inductive reasoning. The predicate of the major premise is a statement of the legal effect of the facts generalized in the subject. The decision is thus arrived at both by inductive and deductive reasoning.

Of course, this is but a theoretical explanation of the process of judicial reasoning. The actual solution of a legal controversy, arising, as it does, out of the complicated facts of economic and social life, cannot be worked out by the mere application of the technical rules governing inductive and deductive reasoning. Too many

forces beat upon the situation to permit the confinement of the process of administering the law to the straight-jacket of a syllogism. And it is well that this is so, for courts are established in the interests of the administration of justice. There is an evolution of business and social life, just as there is an evolution of plant and animal life. The present cannot be understood without a knowledge of the past. Any attempt to divorce the present from the past, to strike out on new lines, without regard for historical knowledge, is likely to prove unfortunate. And yet the truths of history do not constitute the sole data for the formation of judgments in the law, or with respect to any other phase of human activity. The courts do take the present into consideration, and the judicial decision is the result of an appreciation of the value of historical precedent, of logical processes of thought, and of presentday affairs. The most conspicuous changes in the law, and also by far the more numerous changes, are the result of legislation; but the process of change in the scope and content of common-law principles does go on as a result of judicial action.

In the study of judicial decisions, one should therefore be keenly aware of the marked differences between this kind of material and that found in a text-book. The study of judicial decisions is a study of source materials, while the study of a text-book is the study of secondary materials. A writer, in developing a book, will assert general propositions, and establish their truth by the introduction of the detailed evidence which has led him to these conclusions. The material is well organized and developed, with due regard to emphasis, force, and clearness. Immaterial and irrelevant. matters have been eliminated as a result of the research.

The study of original materials, such as decisions of the courts, presents quite a different situation. There will often be found, in judicial decisions, matter which is immaterial to the issue, or, if material, only remotely so. They will not always be carefully organized, and the really important parts may not stand out with proper emphasis. Occasionally the major portion of the opinion may not be germane to the issues. In explanation of this situation it should be remembered that judicial decisions are not prepared with a view to their use as materials for educational purposes. A decision is prepared to justify some action taken by the court, and the language therein is directed to those who are directly concerned in the administration of the law, and are trained in it. In the study of judicial decisions, attention is not directed, in the first instance, toward the generalizations of the law which appear in the opinion and to the proof introduced to support them. On the contrary, the successive steps necessary to the understanding of a judicial decision involve the ascertainment of (1) the ultimate material facts in the case; (2) the issues, or points involved, as disclosed by the errors alleged by the appellant party; (3) the judgment of the court, whether for appellant or appellee; (4) the vari

B.& B.BUS.Law-2

ous principles of law necessarily involved in and to be inferred from the judgment on the issues as raised.

The first and third aspects of a case-the facts, and the judgment are readily discoverable. The real problem concerns the determination of points 2 and 4: What are the issues? And what are the inferences of law necessarily involved in the judgment? These two points are interrelated. Point 2 merely raises a question, or series of questions, of law. Point 4 is an inference, or series of inferences, which contain the reply to the questions raised in point 2. It appears, therefore, that the purpose of the study of a judicial decision is to obtain the inference of law which arises from the force of the judgment. It is impossible for a court to decide a controversy without that decision giving rise to necessary inferences of law. Judicial decisions should be studied with the end in view of determining what is involved by the action taken by the court. This inference of law, arising from the judgment, is sometimes called the decision of the court, using that term in a narrow sense. The terms "judgment" and "decision" are not always employed with the same meaning. In this discussion the term "judgment" is used to describe the order of affirmance, reversal, or modification of the final orders of the trial court. The decision is the necessary inference of law arising from the judgment. This aspect of the case is also quite commonly called the "holding" of the

court.

It will be noticed that, so far, but little mention has been made of the discussion which the court advances in support of the action taken. This portion of the case is usually called the opinion. The opinion is the argument presented by the court in reaching the judgment. In addition to the opinion proper, there will appear in the discussion some statements which are not necessary steps in the argument. These judicial generalizations or expressions are called dicta, or obiter dicta. The dicta in the case bear no necessary connection with the decision. The dicta are of secondary importance at least this is so from a standpoint of determining what principle of law the case actually stands for. Other consideration may make the dicta highly valuable, as, for instance, the fact that it was expressed by a particular judge. A court actually makes law by what it does. What the court says by way of dicta, or opinion, is not necessarily law.

The opinion, however, while it does not necessarily express law, is more important, for the purpose of determining what the case stands for, than statements made by way of dicta. The opinion states the reasons for the actions taken by the court. But it should be borne in mind that the opinion and the judgment are two very different things. It is possible that the opinion may not express the reasons which actuated the court in reaching the result. There exist the strongest of reasons for believing that the prepared opinion does state the reasons which did bring about the decision and judgment. Nevertheless there is a vital difference between the in