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REPORT OF COMMITTEE ON LAW REFORM.

REPORT OF COMMITTEE ON LAW REFORM.

JESSE HOLDOM, CHAIRMAN.

To reform the law so that it will meet with the approbation of all, the Judge, the lawyer and the lay citizen, is a task not to be encompassed or evolved by the genius of mortal man, but to work some reform in the law is a task for which, among other things, this Association was brought into being. Those things in nature as well as in law which are the most stable and enduring have been of slow growth-have taken much time to perfect. Past experience has demonstrated the impracticability of attempting to procure the enactment of many measures of radical law reform at any one session of the legislature, and it has therefore been determined to recommend the advocacy by this Association of the passage of but two amendments to the law at the coming session of the legislature-one the "Habeas Corpus Act" and the other, the Act on "Judgments and Decrees."

The several amendments to the Habeas Corpus Act recommended by the Practice Commission and appearing upon pages 18, 19 and 20 of their report, draft of which accompanies this report, are urged as an amendment worthy the best efforts of this Association to procure to be engrafted into this Act. There is an urgent necessity for this reform in our law. As drafted it fully protects the right of personal liberty of the citizen and is in no sense an abridgement or curtailment of that right or the purpose for which the act was originally placed upon the roll of English Statutes, but it

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is aimed to correct evils which have grown up all over the State by a misinterpretation of its force and effect by many Circuit Judges and in that way the writ has been misused and the course of Justice diverted from well settled legal channels, mainly by reason of the fact that the action of the nisi prius judge however erroneous such action may be in discharging from the penitentiary persons convicted of heinous offences by a commitment under a judgment held by the Supreme Court to be void of error, can not be reviewed on the part of the people by the latter tribunal. There is most pressing necessity for such a measure to regulate the judgments of the nisi prius judges and to correct on review erroneous judgments in Habeas Corpus cases.

The amendment proposed to the Act on Judgments and Decrees, while safeguarding all the rights of a judgment debtor as they obtain under the existing law, yet in effect abolishes the right of redemption. To offset this no sale of real estate can be made until one year after the entry of judgment or decree. The right to discharge the judgment or decree during this year by payment is reserved to the judgment debtor and the advantage to him among others, is, that he escapes entirely the costs incident to a sale. The present system of sales by the sheriff and master under judgments at law and decrees in equity is substantially preserved. Before issuing a deed report of such sale shall be made to and confirmed by the Court. The rights of junior lien holders are protected as to any surplus arising under a sale as the officer making such sale is specifically directed upon such junior lien holders lodging execution in his hands to distribute the same in the order of their respective priorities. In the event of a controversy arising as to the distribution of such surplus the Court on application may settle the same and direct the manner of distribution. The rights of a judgment creditor having an execution against any one having an interest in the land are safeguarded, and any one having an interest in or

REPORT OF COMMITTEE ON LAW REFORM.

lien upon any land who desires to free the same from the lien of any judgment or decree may do so by paying the amount due to the officer holding an execution or if no execution is outstanding then by payment to the Clerk of the Courtthereupon the judgment shall be satisfied of record. Notice of payment, when made to the Clerk of the Court shall by such clerk be sent by mail to either the judgment creditor or his attorney of record.

The right to redeem as practiced under our statute is of no advantage to the debtor intended to be benefited, but is an antiquated mode of procedure which the march of progress has rendered impracticable and void of beneficial result. Its operation directly injures the debtor class for whose protection in the early day it was devised. It obtains in but comparatively few of the states of the Union at this time. From New York to California the practice and procedure is substantially as outlined in the suggested amendments.

Is it not known to all the lawyers that no one but the execution creditor, lien holder, mortgagee or cestui qui trust in foreclosure suits bid or become purchasers at these sales? And why? Because the successful bidder at a so-called sale of real estate simply becomes the purchaser or possessor of a piece of personal property, i. e., the Sheriff's or Master's certificate of sale, hence no one but persons interested in continuing a lien on the real estate sold will bid at such a sale, while on the other hand many real estate buyers persons desiring to acquire real estate, but who do not deal in chattel property, would, if the sale was a sale in fact and not in name only, bid somewhat near the actual value of the property, benefiting and aiding the financially unfortunate judgment debtor, and not as under the present system confine their bids to the amount due under the judgment or decree. Anyone who has had experience in partition sales of real estate and sales of minors or decedent's real estate under decree of the County or Probate Court, knows that the competition is more

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spirited and that prices much nearer the value of the land sold are obtained and oftentimes readily. Under the proposed amendments the same advantage would be attained for judgment debtors, mortgagors in foreclosure suits, etc.

The present committee unhesitatingly recommend the passage by the next legislature of the so-called "Negotiable Instrument Law." This law was drafted by a Committee of the American Bar Association composed of some of the most able and well known lawyers of the American Bar, and its adoption into the statute law of the several states recommended by that body was in the interest of the uniformity of law throughout the Union on that subject. It is a branch of the law which affects all classes of merchants, financiers and commerce in general throughout this country, and in the effect and operation of the law regarding negotiable instruments it is not only International but world wide, and is becoming more so day by day as our territorial acquisitions increase and our commercial activity is ever expanding. There is more need of uniformity of law in this country on that subject than ever before, and the need which amounts to a necessity will never be less while American enterprise endures as the leading factor in the commerce of the world. No law is perfect from every view point and never will be while astute lawyers with fertile mind and busy brain are given to disputation. This law was carefully drafted by men of the soundest legal learning and practical professional experience. It has been welded into the law of about twenty of the sister states. It will be an advance in legal jurisprudence in this country when it is the uniform law of all the states.

The next General Assembly will be no less a political body than its predecessor. It has duties of the highest political character to perform which will be neither shirked nor neglected. No measure of law reform can be passed the coming session unless a strong and intelligent effort is made. backed by patient perseverance which shall not be relaxed

REPORT OF COMMITTEE ON LAW REFORM.

until the desired legislation is obtained. To this end it is suggested that the recommendations here made be referred either to this committee or to some regular or special committee of the Association with instructions to use every lawful effort to secure their ingrafting upon the Statute of our State.

Respectfully submitted,

JESSE HOLDOM,

Chairman.

ACT AS

AMENDMENTS TO THE HABEAS CORPUS

PROPOSED BY THE COMMITTEE.

A BILL

For an act to amend section 21 of an act entitled, "An act to revise the law in relation to habeas corpus," approved March 2, 1874, in force July 1, 1874,

Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: Section 21 of an act entitled, "An act to revise the law in relation to habeas corpus," approved March 2, 1874, in force July 1, 1874, hereby is amended to read as follows:

Section 21. No person shall be discharged under the provisions of this act, if he is in custody, either—

1. By virtue of process by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or,

2. By virtue of a final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree, unless the time during which such party may be legally detained has expired; OR UNLESS IT IS AFFIRMATIVELY SHOWN, ALL PARTS OF THE RECORD BEING INTERPRETED TOGETHER, THAT THE JUDGMENT OR DECREE OR SENTENCE IS VOID; or,

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