case. Suppose the case has been going on all day or for several days.
The plaintiff is very anxious to have it finished. He has been at
great expense and trouble to get his witness and the lawyers' time is
valued at so much per trial day. On the other hand the defendant at
the worst can only have a judgment against him, which may as well
happen at another time. He is willing to have the case declared a
mistrial and start anew; he knows it will take a long time for the
trial to come up again. It has been a dull grilling proceeding, but he
does not care so long as there is a chance of postponing the judgment
against him. It is on the whole better and easier to put it off.

Now if the judge declares a mistrial, on the motion of the plaintiff,
that is his own look out. He believes that he can not have a fair
trial, that he can not proceed. But suppose the defendant by his
lawyer makes the trial unfair. His lawyer keeps asking those improper
questions which imply so much to the minds of the jury. The judge may
speak severely to the lawyer and caution him not to keep on putting
suggestive questions. That is all that he can do. It would be plainly
unfair to order the withdrawal of a juror. The trial according to the
opinion of the judge may be unfair. The plaintiff's counsel is afraid
to ask for a mistrial, first on account of the trouble and expense to
his client, and second, if it be denied, the jury will believe he
thinks them unfair and does not want them to try the case. The judge
is in a curious position with regard to objectionable questions and
testimony, he ought not to penalize the plaintiff by punishing the
defendant. The loosening of the laws of evidence might do away with
quandaries such as these.