delivered the opinion of the court on. motion for rehearing.
We have carefully examined the motion and reasons for a rehearing in this cause, and are convinced that it is our duty to overrule it. The case is of sufficient importance- and interest to justify a statement of the considerations by which we are led to this conclusion.
The counsel for appellant insist that it appears, by what, has fallen from the court, that we consider a reversal of the-' judgment a concession to the demands of a dry and unmeritorious technicality. They proceed to call our attention to-the fact that it has been repeatedly ruled by the Supreme* Court of Missouri that a trivial error occurring in the trial of a cause will not be ground of reversal, when it is manifest that the error could not have prejudiced the appellant or plaintiff in error; and they close by invoking the time-honored maxim, “ consensus tollit errorem,” to show that-the judgment of the Circuit Court should be affirmed.
1. As to the first point, we certainly did not' intend, nor do we think the language of our opinion calculated to convey, the idea imputed to it. As the cause must be tried again, it would be at least culpably indiscreet in us to-utter any expression which could be supposed to be a prejudging of the merits of the case — we mean the facts — to-' pass on which is the province of the jury. If we thought. *567that such a fault could reasonably be imputed to the former expression of our views, we would be careful to modify it; but we cannot think so, and this positive disclaimer of such an intention will, we hope, leave nothing to be desired on this head.
2. The theoretical correctness of the proposition that a judgment should not be reversed for harmless error is undeniable. Yet the difficulty of determining when error is really harmless is so great, the task of applying the criterion is so full of risk, that we can scarcely commend the wisdom or the prudence of adopting the rule as a practical guide to conduct. But the counsel for respondent desire us to do more than this. They wish us to determine that, although in a particular case the result complained of has been reached by methods of which the law disapproves, still the broad merits are so plainly on the side of the prevailing party that it is safe to say the judgment is for the right side, and the appellate court must wink indulgently at a slight disregard of the strict law. This is not an over-statement of the appeal made to us. It is not entirely unfamiliar to human experience. It has been frequently urged upon courts of justice, and is, in our opinion, one of the most plausible, and therefore most pernicious, sentimentalisms that has ever perverted judgment. We dare not, by any sanction of ours, encourage an appeal fraught with such tremendous capacities for mischief. A court exercising appellate jurisdiction does not sit for the purpose of determining whether its individual members sympathize with the fortunes of the litigants whose cases are reviewed by them; nor to declare that, if the matter of fact had been submitted to them sitting as a jury, they would have rendered the verdict which is shown by the record ; nor to say that, in any ordinary case, the judgment, though in violation of technical rules, is for the “right party” — for the party having the “ moral right ” to success. We sit to determine legal rights. In many cases we are, as individuals, sincerely sorry that¿ *568through some casualty, merits which appear to be substantial, have been sacrificed; but we are unable to give relief unless some rule of law has been' violated to the disadvantage of the sufferer. At other times we are surprised at the apparent disregard, by a jury, of what seems to us very persuasive evidence, and the preference manifested for what, to us, appears far less satisfactory. If, in such a case, any misdirection as to the admission or exclusion of evidence, or as to the law applicable to it, has, in the hurry of a trial, fallen from the judge of the nisi prius court, we gladly correct the error. But, if nothing of this sort appears, we have nothing to do bnt to affirm the judgment. We cannot conceive of a more perilous, misleading, and odious power- than would be implied and usurped if a court should decide a cause upon the general, vague, and irresponsible idea that M is the meritorious, and N the unmeritorious, party to the controversy. Such a power might be exercised at the promptings of the wildest caprice. It would be a purely arbitrary power. Its existence would be fatal to an orderly administration of justice, and its exercise coiild hardly fail to corrupt the bench. We do not speak here of that coarse form of corruption which consists in the taking of gifts for the betrayal of official duty, but of the insidious overthrow, by the conviction of a total freedom from all logical restraints, from all responsibility to the enlightened criticism of a learned and vigilant profession, of some of the most important guards to a well-considered judgment. If justice is administered according to the principles of jurisprudence, a judge may confidently appeal to the profession in whose presence he stands, and to whose approval he aspires, in vindication of his interpretation of the law. But if, in place of conformity with scientific reasoning and approved precedents, the decision of controversies be reposed on the fanciful notions which this or that judge may entertain of what he'chooses to call “ substantial justice” — if he who is sworn to administer *569the law presumes to think that, in a case of exceptional hardship, he may “wrest once the law to his authority,” •and, “to do a great right, do a little wrong” — everything which is excellent in our institutions will have received a •deadly wound. For of course no person of sober habits of thought can fail to see that, instead of the appeal being •■made to reflection and judgment, it will, under such circumstances, be made to feelings alone; that the “ great right,” and the “little wrong” will, nine times in ten, be determined by the sentimental aspect in which they are respectively regarded; that their hues will change as rapidly as those of the chameleon, and that one of the least of •the evils attendant upon such an innovation in our practice will be the loss of all stability in judicial decisions.
' The language in which some courts have justified disregard of an objection purely frivolous and technical — language which in almost every instance belongs to the descripr tion of ‘ ‘ obiter dictum ” — appears to have misled counsel into supposing that it is a safe practice to construct forensic logic out of judicial rhetoric. The ablest judges have ■expressed their aversion to “ obiter dicta” but of course •no blame can be imputed to advocates who endeavor to support their views by reference to anything to be found in the solemn decisions of a court of authority. The counsel for the respondent have, with great ability, endeavored to do this; but they have, we think, failed to note the practical injunction contained in one of the best considered utterances to be found in the reports of our own Supreme Court on the subject under consideration. What is there said is so clear, so pointed, that we cannot more satisfactorily illustrate our own views than by quoting from the decision to which we refer.
“ It is, however, suggested that this error should form no obstacle to an affirmance of this judgment because the question of probable cause is a legal one, and the proof on *570the record shows a want of probable cause. It is true that', what constitutes probable cause has been determined to-be a legal question, but the jury have still the right to pass-upon the facts. When the facts are controverted, or the credibility of the witnesses is to be determined, the evidence must goto the’jury” (for which the learned judge cited many cases). “And this was the course of the Circuit-Court, in most of the instructions given in this case. Hence,, the jury were told that the action of detinue could be maintained only for specific chattels, and there was evidence to-show that the goods in possession of Amanda Higgins were-not the same goods which had been mortgaged by Yan HollsHiggins to Brant; but the weight and credibility of this testimony was left to the jury. We cannot undertake to-conjecture on what point the case turned with the jury, nor what influence the seventh instruction may have exercised upon them. The instruction was upon a material point in the case, and, though it would seem to have been superfluous, it may not have been harmless.” Brant v. Higgins, 10 Mo. 728, Judge Napton delivering the opinion of the court.
We have italicised the very perspicuous ’ and pointed summing up of the law on this subject contained in the-last three lines of the citation. It is impossible, in our opinion, to add to the clearness of its statement or the significance of its warning. Indeed, who can venture to say that error ever has been, or ever will be, harmless ? If aii erroneous ruling has in any degree contributed to a result, who can, without arrogating to himself a power of discerning the. thoughts and actions of mankind, which savors of presumption, pronounce that, if the error had not been committed, the result would have been unchanged. All that a. prudent man will venture to say, in such circumstances, is that it seems probable that the result would not have been changed. But to decide dogmatically that it could not possibly have been - changed will be held, we think, by all *571dispassionate men, to be “argument of slender wisdom.”' As we have just seen, it is not a mode of reasoning which, finds favor with the Supreme Court of Missouri.
We confess to some feelings of surprise at the quotation to us, in' criticism of our opinion in this case,- of the maxim,. “ consensus tollit errorem.” If the counsel for respondent have carefully read the paper they impugn, we are at a loss; to understand how they can suppose us forgetful of that time-honored apothegm. We took pains to express ourselves plainly as to this matter of consent, and it is depressing-to find that we have so imperfectly succeeded. We dwelt upon the unreality of consent in such cases, because of the moral duress which effectually prevented anything like free-choice. We aimed to say, in substance, that, when a party was not at liberty to say “no,” it was inequitable to hold, him prejudiced by saying “ yes ; ” and so much stress did. we lay on this distinction that we repeat the expression, of our astonishment that we have been supposed to be-neglectful of the rule that a man cannot be heard to object-to what has been brought about by his own concurrence, because we have said that this concurrence shall go for nothing when it is the product of coercion, and not of free will. the motion for a. rehearing is overruled.
The other judges concurring,