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PROCEEDINGS.

MR. HAMILTON: If it is necessary, I move that the excellent paper be published in the report of this Association. I assume it would be published without the motion, but if not I desire to make the motion, and in addition that it may be given to the press, and the thanks of this Association be extended to Judge Gross.

Which motion was seconded and adopted.

VICE PRESIDENT WOOD: The Chair will be glad to recognize any member of the Association who desires to be heard upon this subject.

MR. GREGORY: If I may interrupt the regular order of business a moment by general consent, I would suggest that since our last meeting there has occurred the death of the Hon. David J. Baker, former Justice of the Supreme Court of this State, and I would move that a committee of this Association be appointed by the Chair to prepare and present to the Supreme Court a suitable memorial upon the death of Judge Baker.

VICE PRESIDENT WOOD: A committee of how many?
MR. GREGORY: Three.

Which motion was seconded and adopted.

VICE PRESIDENT WOOD:

committee later.

The Chair will announce the

MR. MOSES: If Judge Cartwright is in the room I would but voice the sentiments of the bar here in asking that he give us an expression of his views as regards the Commission. I move that Judge Cartwright be invited to address us on this subject.

MR. HIRSHL: I second the motion.

JUDGE CARTWRIGHT: I do not understand what Brother Moses said, what was it?

MR. MOSES: Will the Chair state the motion?

VICE PRESIDENT WOOD: It is requested that Judge Cartwright favor the Association with some remarks upon the subject matter of the address by Judge Gross. The Chair will be happy to recognize Judge Cartwright. (Applause.)

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JUDGE CARTWRIGHT: I do not know that I could say any thing upon the subject which would interest you or tend to your or my advantage. We are troubled in the Supreme Court not at all with questions of pleading, and scarcely any with questions of practice. The cases that have come there since I have been in the Court have been considered upon their merits; occasionally there has been a question arising upon a motion in arrest of judgment, or upon a general demurrer where the court had to consider the question whether the party had been enabled to state facts enough to constitute a cause of action, but otherwise the Supreme Court at least. is not troubled at all with questions either of pleading or practice, as far as I am concerned the court is entirely satisfied with the existing system. (Applause.)

MR. ANDREWs: I had not noticed the program on this subject of procedure, otherwise I should have been prepared to give data for what I might have occasion to say, because I did not intend to let this subject go by without a word in ref erence to it. As Bacon said, every man is a debtor to the profession, and to that profession perhaps I am indebted somewhat. On the subject of this Commission which has agitated our lawyers for a great many years I have one or two very definite views which have been engendered by the practice of the law in this State, and by a study of procedure in this and other jurisdictions, and I must say that after considering the English judicature acts which have been referred to by the gentleman who read the paper, the little practice act of Connecticut, which was a cross between the common law pleading and the code pleading in New York, and the extreme example of code pleading in New York State and its experience and result, I have come to the conclusion that so far as the actual administration of justice is concerned in courts of law or courts of chancery the State of Illinois at the present time has a system that while it may possibly be improved on, is at least the equal in simplicity to that of any state in the Union. (Applause.)

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I am going to recite one or two examples out of each state, that is, out of each jurisdiction, to show the ground for my views, because I think a man ought not, on so important a subject as this, express any view unless he has some good ground for it. In 1894 there arose in the courts of England an action-you will find the case set out in full as an appendix to Andrews' Stephen's Pleading, and in the course of that case they had occasion to examine the rules in reference to the joinder of parties to actions. The last court writing the opinion, said that under the common law and before the judicature acts this question was comparatively simple, and then follows ten or fifteen pages in which they give some very interesting views in reference to the new procedure, and it is very plain from that case that the procedure in England was not simplified in that respect.

In Connecticut there is a late case in which the opinion written by Simeon E. Baldwin, Justice, and in which he says substantially the same thing in reference to the Connecticut practice act; and by the way, the Connecticut and Massachusetts reform practice acts are probably the best examples of simplification that modern times have produced.

So far as New York is concerned the peculiar condition exists, that reform procedure in New York was begun in 1846 in a constitutional convention, and I desire to say that upon that proposition I am compelled to dissent in my view from the views expressed by the learned gentleman who read the paper. I do not believe it is practicable, either in a constitutional convention or in a committee of the Legislature of the State of Illinois to devise a reform procedure act, but I do commend the last Legislature in the method which it selected, while I perhaps agree with the other proposition, that it is folly to ask men to spend their time without any compensation, because that is what it amounts to.

The question will arise and has always arisen before upon the point suggested by the gentleman who read the paper,

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namely, upon that section of the code which attempts to abolish the distinction between equitable actions and legal actions, and prescribe but one form of action. Now I do not believe that it is true that the sentiment of the Legislature is entirely against simplifying our practice act if there can be suggested to them a practice act which really simplifies. But if you begin in the illogical manner in which the New York Code was begun by surprising them with the legislative declaration that you could abolish the distinction between things which were entirely distinguishable it is a myth, it is a chimera, and the experience of New York state proves it beyond all question. The late Austin Abbott said that the code was a labyrinth, and in New York they are now trying to simplify and reform the reform procedure. But the reason why I said I did not believe the Legislature was opposed to the consideration of that which bore on its face the mark of simplicity is this: I happen to know that the reason why the last application to the Legislature of the State of Illinois that was seriously made, failed, was the simple reason that the very first section of the proposed reform was that old section of the code of New York and all the other codes which follow upon it, abolishing or attempting to abolish the distinction between actions at law and actions in equity. The chairman of that committee, the Judiciary Committee, wrote to me, knowing and believing that I had given some little study to the subject, asking me what I thought about the matter. I simply replied by telling him that in the State of New York the court on more than one occasion, had dismissed the suit out of court actually no direction that the cause be reversed with the direction that the pleadings be amended and the cause transferred to the proper docket-but they had dismissed the cause of action out of court entirely because the action was one in which a legal proceeding would not, under any circumstances lie; and that that section of the code only could have operation and effect where both courts had concurrent jurisdiction.

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That has been done in three or four separate cases within the last few years. I mean by a few years, ten or fifteen.

Now as this will probably be the last occasion that I shall have to say anything in reference to the subject of the reform procedure in Illinois, I may say that such a Commission would have abundant material and example to guide them, so that if they understand the history of this proceeding they need not be such a great length of time upon it. It is true that it is simple absurdity that the subject of abatement of actions should be placed under "A,"-that simply results from arrang. ing the statute alphabetically, that is all there is to that. Now any person who considers reform procedure should go back and see whether or not law and equity have always been joined in one court, or whether they may have been separated. Of course we all understand the idea of the court in having but one form of action, in which you join legal and equitable remedies. This was not born in New York-David Dudley Field never invented the idea, that was the original practice in Pennsylvania, in Massachusetts and Connecticut and they never had a court of equity at all in Massachusetts or New York until after this century began. The Pennsylvania idea was found to be impracticable and cumbersome, and they finally came to the idea of having a separate court of equity. Now I was struck with a happy expression of Judge Gross in one thing, he did not speak of the practice in chancery, but spoke of equity jurisdiction and procedure. The old chancery practice and the old common law practice has fallen into disuse so that in Illinois amendments will cover in both cases all those idiosyncrasies and absurdities which defeat the old practice. There is no occasion for a slip because there is no time from the beginning of a proceeding until it is at last reversed or affirmed, or reversed without sending back by the Supreme Court, when that court has not the right, and it generally seems to me has a disposition to say that the pleadings shall be made of such a character that justice shall be attained. MR. MOSES: It has never been done.

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