ot know his business and the fine point of law is not
entirely clear to his Honor, and he makes a mistake and the case is
dismissed. The result is that although he has granted the motion of
the defendant to dismiss and given the defendant what he wanted, he
has in reality penalized him, for the appellate court will reverse his
decision and the defendant have to pay all costs and stand the expense
of a new trial. The judge is in a quandary, which he may get out of in
two ways. One is to let the weak case of the plaintiff go to the jury
with the hope that they will see what a poor showing the plaintiff has
made and find a verdict for the defendant, in which event he will be
safe. But if the jury should make a mistake and find for the
plaintiff, then the judge has the intention of setting that verdict
aside, nullifying all the work of the jury, the witnesses, the
clients, and the lawyers, and ordering a new trial. This is rather a
weak-minded proceeding and shows the necessity of having a man in the
referee's chair who knows how to decide.

The second alternative for the judge is to reserve decision on the
motion and to let the jury go into the jury-room and worry about the
verdict for an hour or two, while the judge has the hidden intention
of perhaps deciding that they need not spend any time at all about the
matter.

The principle on which the judge passes on this motion to dismiss is,
that after all the case is in and all proof had, that on the proof and
evidence there is not enough on the part of the plaintiff from which
any reasonable man could ever find a verdict for him. The motion
differs from the one at the close of the plaintiff's case in that the
latter is based on there being no proof at all, while the one after
the case is entirely in is based on the theory that there is no
possibility of a verdict.

This sounds again like a metaphysical discussion, but is illustrative
of the futility of formal motions, so that actually the decision
depends upon the good plain common sense of the judge. The tendency is
that if the case has gone to the length of a full trial and there is
any question of fact involved, that the jury should determine the
question of fact and exercise their functions. It must be a poor weak
case of the plaintiff and evidently unsound, in which the judge or the
appellate court interferes.

Throughout the trial the little motions that occur bear the same
relation to the main issue as do the ob