constructed and whether it is a fraud or not. If he finds that it has been made up by citing all cases found in the notes to text-books under any statement similar to what counsel claims and from other like sources, without examination, and that most of them have no relation to the question under investigation, he is not to be much blamed if he does not continue the search very far."1

Another almost as equally pernicious, and certainly equally as common a mistake, and one closely akin to the above, is that of overloading a brief with authorities. This should be carefully avoided for more reasons than one. One frequently meets with briefs where more than a hundred authorities are cited in support of a well established legal proposition. Such a formidable array of material savors of pedantry, and, instead of adding force to a brief, detracts from its real strength. Remember that one well-considered case directly in point, especially when it comes from a court of acknowledged authority, may be sufficient to establish the correctness of your legal proposition, and certainly it adds nothing to its strength to cite a dozen others where the point was poorly considered, or where at best the remarks of the court were, perhaps, entirely obiter dicta. A juror said to the court that he had twenty reasons to account for the absence of his brother juror. "State one of them," said the judge. "Well, in the first place, your honor, he's dead." "That will do," promptly replied his honor, "you needn't state the other nineteen reasons."

A great secret is to learn to stop when you have said enough. In this age of stenographers and typewriters the great temptation is to say too much rather than too little. Quoting again from Mr. Justice Cartwright's able article, we say:

"Wearisome prolixity is to be avoided, and this is a great and growing evil. The stenographer and typewriter, by removing the obstruction which the time and labor employed in writing imposed, have opened the flood-gates for verbiage, which is poured upon the trial courts in instructions and upon the courts of review in argument. In any writing prolixity is not evidence of thoroughness of examination or profundity of thought. It tends rather to obscure ideas and diminish their 1 Briefs and Arguments that Help the Court, Chicago Legal News, vol. 28, p. 176.

force than to make them clear or easily comprehended. The greatest help to the court is to leave out the trash, and devote the argument to discussing the real questions in the case, and to applying and distinguishing the authorities and cases cited in the briefs."

§ 554. Application of foregoing rules - The argument Continued.-To know how to make the best of authorities after you find them is quite as important as to use proper discrimination in their selection. A few well-selected cases, precisely in point, from courts of recognized authority for learning and ability, properly made use of, is ordinarily all that is necessary. We say ordinarily, because there arise, now and then, questions upon which the holdings of the courts are so divided that, in determining the "weight of authority," numbers may be reckoned as one of the elements; yet here, as in weighing the testimony of witnesses, other things are frequently of greater importance than mere numbers, and, therefore, must always be taken into consideration.' But, aside from these exceptional cases, the best results are obtained by making the proper use of a few well-selected cases. From these select two or three, or more if necessary, of those most in point and where the language of the court best answers your purpose, state enough of the controlling facts to show to the court that what is there said applies equally to the case in hand, and then quote fully from the opinion; that is, that part of it covering the point in question. State your facts fairly and be honest in your quotations; in other words, be just to yourself and honest with the court. By pursuing this course you accomplish two purposes you save the court the time and labor of getting the book and finding the case, a matter of importance to the overworked judges, but, what is of more importance to you, and to them too, for that matter, you place before them the precise parts of the opinion which, in your judgment, support your contention. Follow this plan with as many cases as you deem necessary, and then add the general statement, if deemed proper, that these cases have been followed, or approved, by other courts, citing the cases. Another matter, seemingly of small importance, yet often saving the judges both time and

1 Of the relative authority of cases and the rules for testing their value, see ante, §§ 359–361, 473, 474.

labor, is, in citing a case, not only to give the book and page, but the precise page where the principle is discussed. Otherwise the judge may have, practically, to read the whole case to find your point.

§ 555. Preservation of briefs.-The rules of every court of last resort should require the parties to file at least twentyfive copies of their briefs in each case. This is the number required by the United States supreme court rules, and the same number is required by the rules of the circuit courts of appeals and by the federal courts generally. These briefs should be required to be of uniform size, and, after retaining a sufficient number for the use of the court, at least one set from each case should be bound in volumes of convenient size, and thus preserved in the library of the court, and the remainder distributed among the principal law libraries of the state. A rule to this effect was adopted by the supreme court of Indiana, the object of which is stated by Mr. Justice Baker of that court, as follows:

"The rules require that briefs shall be of a uniform size. This might be thought an idle requirement, if the purpose were not known. It is immaterial to the court, as far as the study of any particular case is concerned, of what size the brief may be. The supreme court of the United States, and of many of the states, preserve and bind the statements of facts and arguments made by counsel. That is the purpose the supreme court of Indiana had in mind in requiring that briefs be filed of a uniform size. When these rules become operative it will be possible, and it is the intention, to have complete sets of the briefs bound, to correspond with the official volumes of the court decisions, and to have a set of the bound briefs in the law library for the use of the bar, and a set in each judge's chambers."

"The court was desirous of preserving for its own use and benefit, and for the assistance of the bar generally, the exhaustive and learned efforts of eminent attorneys, whose arguments are not merely useful in the particular cases in which the briefs were filed, but frequently are a compendium of the law upon the particular subject treated, which is much more thorough, learned and reliable than the treatment of the same subject in the ordinary run of text-books."

"By keeping up a card index of these bound volumes of briefs it will be but a comparatively short time until they will be available to all persons who care to use them a set of books containing a mine of law that it will be impossible otherwise to duplicate. Of course, no rules can be self-operative, so the full value of these modifications and changes in the old procedure will depend more largely upon the assistance and co-operation of the bar than upon the efforts of the bench."

VI. THE DUTY OF THE COURT.

§ 556. The duty of the court-Weight given to master's findings. One of the duties devolving upon the upper court, in a case where questions of fact are involved in the appeal, raised by exceptions to a master's findings of fact, is that of examining the whole evidence and determining whether the master erred in making such findings, and, also, whether the action of the lower court, in approving or overruling such exceptions, was erroneous. The proper discharge of this duty involves that of determining the weight to be given to the master's findings. But first, as to the duty of examining the whole evidence. Of course, it must be understood by the term "whole evidence" is meant the whole evidence bearing upon the issues involved. As we shall hereafter see, the report of the master, on pure questions of fact, where the evidence is contradictory, and where the witnesses testified orally in his presence, especially when approved by the lower court, has every presumption in its favor and will not be disturbed except for the most cogent reasons. It is not conclusive, but, on the contrary, it is the duty of the upper court to carefully examine the whole evidence bearing on the question presented by the exceptions and promptly reverse the master, if justice demands it. Upon exceptions to the master's findings of fact the court of original jurisdiction is bound to examine the evidence and determine what are the facts. Whether that court agrees or disagrees with the master's findings, on appeal, the appellate court shall in like manner determine if the facts have been rightly found. When the appellate court is satisfied that such findings are without proofs, or material facts established by the proofs have not been found, it follows that there has been a plain mistake,

and the court should not hesitate to correct the same. In the several stages of the proceeding there is no place for a perfunctory consideration of the evidence relative to the facts in dispute.1

In the Ontario chancery court it is held that the "parties to a cause are entitled, as well on questions of fact as on questions of law, to demand the decision of the court of appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect."? In Indiana, where the evidence is properly reported, and the correctness of the master's findings is challenged by proper exceptions, the court must review the evidence, and, if the finding is erroneous, disregard it, and pronounce the proper decision. The report of the master is in its nature advisory and may be used to assist the court, but not to conclude it. In the trial court the presumption should be that the finding of the master is correct, but if the trial court adjudges it erroneous the presumption goes down. By the usage of appellate courts of general jurisdiction, in England and America, it has ever been held, in the absence of express statutes to the contrary, that the findings of superior courts in chancery cases are open to review in the higher courts. Such courts have, from time immemorial, always proceeded in such cases to examine and determine for themselves the truth as to controverted questions of fact, and this must be done by the evidence contained in the record.

1 Worrall's Appeal, 110 Pa. St. 349, Miller v. Cook, 135 Ill. 190, 201, 25 N. 362, 1 Atl. 380. E. 584, 10 L. R. A. 292; Cheney v.

2 Armstrong v. Gage, 25 Grant's Roodhouse, 135 IL 257, 262, 25 N. E Ch. R. 1, 38.

3 Bremmerman v. Jennings, 101 Ind. 253, 256; McKinney v. Pierce, 5 Ind. 422; Lewis v. Godman, 129 Ind. 359, 362, 27 N. E. 563; Stanton v. The State, 82 Ind. 463, 468.

4 Fanning v. Russell, 94 Ill. 386; Joliet & Chicago R. R. Co. v. Healy, 94 Ill. 416; Moore v. Tierney, 100 Ill. 207, 212; Kerfoot v. Cromwell Mound Co., 115 Ill. 502, 505, 25 N. E. 960;

1019; Belleville v. Citizens' Horse Ry. Co., 152 Ill. 171, 184; Goelz v. Goelz, 157 Ill. 33, 40; Ennesser v. Hudek, 169 Ill. 494, 499; Martin v. Martin, 170 Ill. 18, 28; Westerlo v. De Witt, 36 N. Y. 340, 345, 93 Am. Dec. 517; Crane v. Baudouine, 55 N. Y. 256, 264; Godfrey v. Moser, 66 N. Y. 250, 252; Sherwood v. Hauser, 94 N. Y. 626, 627; Baird v. Mayor, etc. of New York, 96 N. Y. 567, 577, 578.