But as was said above, if the train of facts or those in the pleading
is imperfect, the modern spirit is to allow them to be made perfect.
The only theory of law that is contrary to this spirit is what is
known as the theory that every man is entitled to his day in court
and the day being had it is unfair to bring the other side in again on
account of some defect or forgetfulness on the part of the other.
The reconciliation is that there should be no surprises on a trial,
the modern tendency is to bring the case away from the idea of an
ordeal by battle. The little advantages that are gained by sorties and
surprises and which are usually taken advantage of by motion, are
after all not of great moment.
An anomalous situation shows the absurdity of these motions, for when
the plaintiff rests, unless the defendant makes a motion to dismiss
the plaintiff's case, he is supposed to admit that the plaintiff has
made a good _prima facie_ case, and if he does not move he is forever
after, on appeal or otherwise, prevented from claiming that the
plaintiff did not make out a good case. The result is that at the
close of the plaintiff's case the motion is usually made as a matter
of form to preserve the defendant's right.
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