down, the courts put a large part of it up again. In a few, it has not been touched.

Section 69 of the New York Code of 1848 (now Sec. 3339) attempted to reach the matter by this well-known provision: "There is only one form of civil action. The distinction between action at law and suits in equity, and the forms of those actions and suits, have been abolished." To that were added provisions as to joinder of legal and equitable causes of action, and as to interposition of all defenses, legal or equitable, in all cases. Liberally construed and applied, these provisions would have done their work. But they were misinterpreted by many who assumed they were intended to "abolish equity." No such purpose exists. To unite the legal and equitable powers of courts in one proceeding is the next step after uniting legal and equitable powers in one court, as was done in the federal Judiciary Act of 1789.

The English Judicature Act provided for this by a series of carefully drawn clauses in Sec. 24. But the whole is well summed up in Sub-section 7: "The High Court and the Court of Appeals, respectively, in the exercise of the jurisdiction vested in them by this act, in every cause or matter pending before them, respectively, shall have power to grant and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them, respectively, in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties, respectively, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided."

The advantages of this mode of statement over that adopted in the New York Code are obvious.

A fortiori the proposition involves doing away with all separate forms of action for legal relief. An act for reforming procedure, now under discussion in Illinois,

com

provides an elaborate scheme of distinct legal actions and proceedings. A simple scheme of distinct actions at law was provided for by the Massachusetts Practice Act. But, when the experience of the whole country is taken account of, the matter is no longer arguable. Because some of the earlier decisions under the codes, still adhered to in part of some states, insisted that the mon law actions inhered in nature and could not be done away with, and hence that a party was bound inevitably to the theory of his case which he appeared to intend to put forward in his pleading, many have asserted that the provision for a single form of civil action in the New York Code was a failure. But the growing tendency in code states to-day is to do away with the doctrine of "Theory of the Case" and carry out the spirit of the code. 10 In view of such decisions, it is an anachronism to set up a system of distinct actions at law in 1910. Where separate forms of action still exist, it would be a mistake to replace them by new ones, however simple, for two reasons. (1). Experience has shown that when one system of hard and fast actions is substituted for another there is danger that the new system will outdo the old in rigidity." (2) Wherever there is a separate form, men tend to assume that there is a distinct substance, whereas, the sole question aside from due notice to one's adversary, may be one of remedy. This is true particularly of equitable remedies where the question of granting them may be one of expediency in view of the particular case. The true ends to be looked to are notice to the adverse party and keeping a proper record of what has been adjudicated. Separate actions are not not necessary to, nor are they the best means of, achieving these purposes.

(10) Cockerell v. Henderson (Kan.), 105 Pac. 443; Prentice v. Nelson, 134 Wis. 456; Rogers v. Duhart, 97 Cal. 500; Cole v. Jernan, 77 Conn. 374; Garkrer v. Convine, 57 Ohio St. 246.

(11) See remarks of Mr. W. B. Hornblower, quoted in 2 Andrews, American Law (2d Ed.), $635, Note 29.

VI. So far as Possible, All Questions of Fact Should Be Disposed of Finally up- | on One Trial.-To give effect to this principle, four propositions may be suggested:

(1) Questions of law conclusive of the controversy or of some part thereof should be reserved and a verdict should be taken subject thereto, if the questions are at all doubtful, with power in the court and in any other court to which the cause may be taken on appeal, to enter judgment, either upon the verdict or upon the point reserved, as its judgment upon such point reserved may require.

(2) In case a new trial is granted, it should only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable.

(3) Wherever a different measure of relief or measure of damages must be applied depending upon which view of a doubtful question of law is taken ultimately, the trial court should have power and it should be its duty to submit the cause to the jury upon each alternative and take its verdict thereon, with power in the trial court and in any court to which the cause may be taken, on appeal, to render judgment upon the one which its decision of the point of law involved may require.

(4) Any court to which the cause is taken on appeal should have power to take additional evidence, by affidavit, deposition or reference to a master, for the purpose of sustaining a verdict or judgment whenever the error complained of is lack of proof of some matter capable of proof by record or other incontrovertible evidence, defective certification or failure to lay the proper foundation for evidence which can, in fact, without involving some question for a jury, be shown to be competent.

The first and the fourth of the foregoing propositions have been presented before: The first was embodied in the proposed act with respect to procedure in the federal courts submitted last year, and was approved by an overwhelming majority.12 The

One of the triumphs of Judge Doe in New Hampshire was the judicial working out of the second proposition. His argument is: "There is no general rule that when there has been an error in a trial the party prejudiced by it has a legal right to a new trial. He has a legal right to a cure of the error, but not to a choice of the remedies. When the erroneous

part of a case is cured, the general principles of our jurisprudence do not require the application of the remedy to other parts of the case which do not need it."14

་་14

This rule is adopted in the revised code of Kansas. It is also the English practice.16

VII. No Judgment should be set aside or New Trial Granted for Error as to any matter not involving the Substantive Law or the Facts, that is for Error as to any matter of Procedure, unless it Shall Appear to the Court that the Error Complained of has resulted in a Miscarriage of Justice.This principle has been debated extensively. It has been approved twice by this Association by more than a two-thirds majority of those voting. Perhaps much of the opposition thereto results from doubt as to the meaning of the term "miscarriage of justice." Of course that must mean justice according to law. What, then, is a miscarriage of justice?

17

It is submitted that the term should include: (a) violation of substantive law, (b) any deprivation of a right given by substantive law to insure a fair opportunity to meet an adversary's case or a full op

portunity to present one's own, provided it

(13) See Rules of Supr. Ct. (England), Order $8, Rule 4; Kansas Rev. Code Civ. Proc., §574; 34 Rep. Am. Bar Ass'n, 598-600; 3 Ill. Law Rev. 586; 4 Ill. Law Rev. 140; 4 Ill. Law Rev. 505-506. (14) Lisbon v. Lyman, 49 N. H. 582. (15)

Rev. Code Civ. Proc., §307.

(16) Order 39, Rule 7. As to the abuses which follow new trial of the entire cause in such cases, see Rep. N. Y. State Bar Ass'n, 1909, p. 41.

(17) 34 Rep. Am. Bar Ass'n, 82; 33 Rep. Am. Bar Ass'n, 49.

is made to appear that he had a case to present or had a real interest in meeting his adversary's case. As has been said, equity acts on the latter principle in case of void and fraudulent judgments, and courts apply it in setting aside defaults and judgments by confession. But it will be asked, How shall such a miscarriage be shown? An example is furnished by the evised code of Kansas. That act provides, in effect, that where a ground of motion for a new trial is error in the exclusion of evidence, the conventional offer of proof shall not be enough; the evidence excluded shall be produced at the hearing of the motion, by affidavit, deposition or oral evidence of the witness or witnesses, as the court may direct, and the party opposing may rebut such evidence in like manner, and no new trial shall be granted for such error unless upon the whole evidence at the trial and such evidence adduced on the hearing of the motion, the court shall be of opinion that the verdict or decision is wrong in whole or in some material part, or that the case made with respect to the evidence which was erroneously excluded, is such that that evidence ought to be submitted to a jury.18

In view of the universal abandonment of the "scintilla" doctrine, it is hard to see how this may be objected to.

VIII. So far as they merely reiterate objections already made and ruled upon, Exceptions Should Be Abolished; it should be enough that due Objection was Interposed at the Time the Ruling in Question was made.-Exceptions still serve a useful purpose with respect to the charge of the court, where they are in the nature of objections, and not a mere formal repetition. So completely formal are they in other cases, that the committee is advised official

reporters in several jurisdictions note them as a matter of course after all rulings at the trial, without requiring them to be actually spoken.

IX. An Appeal should be treated as a Motion for a Rehearing or New Trial or for Vacation or Modification of the Order or Judgment Complained of, as the Cause may require, before another Tribunal.—At common law, after trial at nisi prius, the cause was heard by the court in banc upon rule for a new trial or motion in arrest or for judgment non obstante. In that simple proceeding and not in the writ of error, an independent proceeding of a formal and technical character, is the true analogy for appellate procedure. Unhappily, the other has been followed. In consequence in ten years, 1896-1906, our courts decided 2,377 distinct points of appellate practice-almost as many as the combined points of master and servant and municipal corporations, or of carriers, constitutional law, corporations, negligence and sales added together. Indeed, appellate procedure is often the bulkiest single topic in our digests. This is wholly unnecessary. Procedure on appeal may be and should be as simple as procedure upon a motion.

Finally, as a corollary:

Upon any appeal, in any sort of cause, the court should have full power to make whatever order the whole case and complete justice in accord with substantive law may require, without remand, unless a new trial becomes necessary.

Our reports show too many cases upon construction of the mandate and construction of the opinion of the reviewing court. Wherever possible, that court should do its work completely. Enough time will be saved by a simple appellate procedure to admit of doing this.

ROSCOE POUND.

MCCLELLAN, J.: Counts 1, 2, and 7 as amended were those upon which the testimony was taken upon the trial. The first two rely upon the negligence of defendant (appellee) in omitting to warn and instruct plaintiff's (appellant) nine year old child, inexperienced and immature, in reference to the dangers incident to her employment in defendant's hosiery mill. The seventh count as amended ascribed the injury to the negligent failure of the defendant in respect of an uncovered, exposed shafting, rapidly revolving a short distance above and parallel with the floor of one of the rooms of the mill. This is the second appeal. Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 South, 702.

The main question now presented for review is among those decided adversely to appellee on the previous occasion. It is, under pleas H and I, whether the consent of a parent, who sues for the loss of the services, etc., of his injured minor child that the child engage in the hazardous employment in which it is injured, is chargeable with negligence, proximately contributary to its inju ry, and, hence, be barred of recovery in such action for the loss of services, etc., where the complaint ascribes the injury to the negligence of the master. In deference to the insistence of appellee's counsel, we have carefully reconsidered the question, and, after so doing, feel impelled to reaffirm the former ruling thereon in this case.

Reference to the numerous decisions of this court, cited and pressed upon our attention for appellee, will discover that none of them affirm the proposition that a parent's consenting to the employment of his minor child in a dangerous business includes either the assumption of risk of injury therein or affords the basis for the imputation of contributory negligence on the part of the parent in any action by the parent, where the

cause of the injury is ascribable to the negligence of the master. The previous ruling rested, at least in part, upon the theory that the consent of the parent to the employment created a condition merely, and that the proximate cause for the injury was to be found in the negligent failure of the master to instruct and warn the child. The sequence, in cause of injury, cannot be ascribed to the original want of care of the consenting parent, for the reason that, as pleaded in counts 1 and 2, that dereliction of the parent was, if unaided, obviously innocent of damnifying result. The consent of the parent to the employment bore the child to a dangerous situation; but injury attended the child in consequence of the master's failure to warn and instruct, and not from the dangerous situation into which the parent had consented that the child be placed. The conclusion then announced, and now reaffirmed, is in accordance with the doctrine prevailing in this court, viz., that the proxim te cause of an injury is ascribed to the act or omission subsequent, in order of effect producing the injury, to that want of care, it may be, creating the status upon which the duty last breached is erected.

Plea 3 avers the injury to have resulted proximately from dangers ordinarily incident to the service, and hence was within the general issue pleaded, and might we have been stricken on motion. Counts 1 and 2 could only be sustained by proof of injury in consequence of the negligence charged in them, and the failure to warn and instruct the child were not of the dangers ascribed in the plea.

Pleas H and I would ground contributory negligence upon consent, with knowledge, of the plaintiff that his child engage in the dangerous service described. On the facts averred, these pleas were subject to the demurrers interposed. The court erred in overruling the demurrers to pleas H and I.

Counsel for appellee insist that these pleas were apt in reply to the averment of nonconsent of plaintiff set forth in the first count. The plaintiff must prove his averment, even though unnecessarily incorporated therein, as a condition to a recovery. Tenn. C., I. & R. Co. v. Crotwell, 156 Ala. 304, 47 South. 64. But this fact will not serve to render that proximately contributing negligence, as appellee contends, which, in fact, is not so.

A number of the charges given or refused, and the court's action in respect to them, are assigned as error. What has been before said in reference to Pleas H and I will serve to indicate the proper course for the court

in dealing with charges touching that phase of the case.

Under the rule declared in Bube V. Birmingham R., L. & P. Co., 140 Ala. 275, 37 South. 285, 103 Am. St. Rep. 33, among other decisions here, the financial condition of the child is a proper element of the inquiry, in order that the jury may determine from the whole evidence the loss likely to be entailed upon the parent in consequence of the child's injury; but this does not render proper an investigation of the source of the child's estate, if such it has.

The testimony in reference to a recovery in another action by the child against this defendant should not have been admitted over plaintiff's objection. Nor did the dispo sition made of their wages by sisters of plaintiff's injured child tend to shed any light upon the issues in the case.

Nor was the matter of settlement of plaintiff's guardianship of the injured child serviceable on any issue raised by the pleadings. It should not have been admitted over plaintiff's objection.

We are not able to find any tendency in the evidence supporting material averments of count 7 as amended. The court did not err in giving the affirmative charge thereon, as requested by defendant.

The errors indicated require the reversal of the judgment and the remandment of the

cause.

Reversed and remanded.

NOTE-Failure to Warn Infant Employee as Negligence Not Within Parental Consent to Employment.-The apparently unbroken line of authority is that consent by a parent for a child's employment in a dangerous business goes, so far as parents' right to recover for loss of services is concerned, to the assumption of the risks of employment. It does not, however, go to exonerating the employer for his negligence. But though this is true, it remains to inquire, whether the parent's consent to employment places the minor wholly upon the same footing as an adult employee, so far as the parents' right of recovery for loss of services is concerned. The principal case is seen to place the parent in a situation of rightful reliance upon the master's giving necessary warning to an inexperienced employee.

In Pecos & N. Tex. Ry. Co. v. Blasengame, 42 Tex. Civ. App. 66, 93 S. W. 187, the decision carries the inference that minority and inexperience require a warning and that mere consent to a minor's employment does not excuse the master's negligence in this regard. A prior decision of this same court, which held that consent did not bar recovery where the negligence was that of a fellow servant, according to the Texas rule, also held that the test of the necessity of warning was inexperience rather than minority. Thus it was said: “If plaintiff consented to the employment of his son, or with knowledge of such employment acquiesced therein, then" if appellant's agent "was reckless, negli

gent and an unsafe person for plaintiff's son to work with and his said son knew of the recklessness or unsuitableness of said" agents "prior to the time he was injured, and was capable of understanding and appreciating the danger of working with him, and by reason of said" agent's "recklessness or negligence was injured, then we think the plaintiff assumed the risk of such recklessness or negligence and cannot recover." This quotation seems to state the matter quite strongly against the parent, in that it might be deemed to carry consent to work over to a management of which the consenting parent might be ignorant, whether the work be in its nature dangerous or otherwise. Thus in the case of Braswell v. Garfield Cotton Oil Mill Co., 66 S. E. 539, the Georgia Court of Appeals rules, that where a father consents to his son doing certain work and the latter is put to different and more dangerous work he has his cause of action despite the consent. In that case also it was said: "The age of the infant is not directly or primarily material, except in so far as it establishes the fact of his minority and the parent's right to his services. Even in a case where the maxim valenti non fit injuria would bar the minor himself from recovering, the defense under the maxim cannot be set up against the father for the reason that his consent was to take the risk of danger from one source, while the employer had exposed the child to a different and distinct danger."

The court rendering the decision in this princinal case, while seen to deem failure to warn, negligence, yet appears from prior decision to hold, that mere minority is not the test of its being negligent not to warn, where a minor is engaged in a dangerous employment. If a minor has the appearance of a maturity that would give right to the presumption of capacity to understand work and the danger attendant thereon, he need not be warned. "It is a question for the jury to determine whether the master ought to have known of the necessity of instructions." Louisville & N. R. Co. v. Wilson, 50 So. 188.

In Ewing v. Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 200, it is said: "It cannot be said that the master was negligent in failing to instruct his miner employee concerning the dangers attending his employment, when his duties are so simple and the danger so obvious that the minor could not fail to see them himself; nor when the minor is possessed of the requisite knowledge by other means. The rule requiring the master to instruct his servant, and to warn him, of danger, is only for the purpose of supplying with information which he is not presumed to have."

In Ryan v. Northern Pac. R. Co, 53 Wash. 2-9. 101 Pac. 880, it was said of the minor 17 years of age, that "he was a man in experience and comes within the rule "when the court can say as a matter of law, that a failure to warn him of the open and apparent dangers is not negdligence." This was a suit by the infant himself, but we do not imagine that it would be held that he ought to have been warned, if the father were suing. But it may be deduced that if warning ought to be given, mere consent for a minor to work does not excuse its not being given, but failure to give is a distinct negligence. C.