ive him a right of recovery his case is dismissed;
or if he has a cause of action but has not proven the facts, it is
also dismissed.

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.

Usually this motion is denied if there is a possibility of making a
case, but suppose the judge either through ignorance or to be obliging
should say, "Well, the plaintiff has made out a good case, but if you
ask it, the blood be upon your own shoulders, and I will dismiss the
case." The defendant does not want it dismissed but he has asked for
it and he has got what he asked for. The result is an anomalous
situation. The case will undoubtedly be reversed and he will be
mulcted in costs for being compelled to ask, because of the formalism
of the court procedure, for what he did not want.

At the end of the defendant's case, when both sides have rested, the
defendant again moves to dismiss. Here again it is a formal motion,
which he may not altogether mean, but which the lawyer often makes as
a matter of form. If the judge really believes there is not enough
evidence to let the case go to the jury, he ought to say so without
the necessity of a motion. Suppose there is not, he dismisses the case
"on the merits" and the trial is over. But suppose there is and the
judge does n