PROCEEDINGS. 3 MR. ANDREWs: The gentleman who interrupts is mistaken, it has been done. The gentleman's observation was plain, that it never had been done, never had been reversed with directions to amend, and with that I must take issue. Now the reform in procedure in modern times began with John Henry Stephen and Lord Brown in Europe. Lord Brown was not on the commission, but his great speech in 1828 is the beginning of the modern proceeding which finally resulted in the acts of 1852 and the judicature acts of 1873. The Connecticut code or it is not to be called a code, it is called the new practice act, has exactly 33 sections in it, no more, no less, and Judge Townsend now upon the Supreme bench, not then a judge, wrote the first practice act, and it is a book as small as one of the little annual session laws which we now have. The examples given us in Connecticut and Massachusetts are examples which we may follow, not in substitution, but perhaps in amendment, because I, for one, should feel very strenuously opposed to any idea which should proceed upon. the lines of a substitution of our practice, and I am willing to say this much, I do not believe there is a single cause of action which can be suggested which a skillful pleader in Illinois can not state with as small a number of words as it can be stated in any other procedure that was ever devised in the world. JUDGE BRADWELL: My friend Gross seemed to think that to mention the word code would drive this institution into fits, I don't know but he is right. And there is a great deal said about the common law here, and that is the perfection of all human wisdom. Perhaps I might illustrate that by way of quoting our friend Chief Justice Fuller of the Supreme Court of the United States. When Lord Coleridge was over here and Chief Justice Fuller was appointed to deliver the address of welcome at the Grand Pacific at the banquet, he said, "I can assure your Lordship that the common law system of procedure is maintained in greater purity in Illinois to-day PROCEEDINGS. than it is in any other state in the Union," and gloried in it, you know, and when the Lord Chief Justice got up what did he say? Why, he says, "I would say that we have been trying for the last thirty years to get rid of the common law in prac tice and procedure and I am happy to say that we have very nearly succeeded." Now I have quoted two very distinguished authorities as to the value of the common law pleading. I am in favor of the English judiciary act, it is short, it is clear, and they dispose of their cases about twice as quick or quicker than we do here, and I think that is better than the code, but I am for anything, Mr. President, I am for anything that I can go to the people with and say it will shorten the road from the commencement of a law suit to its determinatior. That is my idea about it. MR. MOSES: Perhaps it is proper for me to present some remarks upon this subject, inasmuch as I am Chairman of the Law Reform Committee. I am glad to have heard from the Chief Justice of the Supreme Court that he, at least, as a member of the bar can be satisfied with the present practice in the State of Illinois. JUDGE BRADWELL: He did not say that, he was saying that it was here in its purity, he didn't say he was in favor of it or against it. MR. MOSES: I am speaking of the Chief Justice of this State. JUDGE BRADWELL: Excuse me, I thought you were re ferring to Chief Justice Fuller. MR. MOSES: I must say in reply that the Chief Justice has been away from the bar a great many years, and he perhaps is not as well advised as to the sufferings of the bar at the present time. A discussion of this question at large, or in its full breadth would be impossible and I shall not undertake it. I know this, that I know the sentiment of the bar of Illinois, that they are opposed to the code system. I myself am opposed to the code system. I have just read the proceedings PROCEEDINGS. of the New York Bar Association and they are just employing what we are trying to do, namely, a new practice comission, after fifty years of experience which they have declared to have been a great failure. They have now in New York a revision committee, half their work completed; they have a new committee something like the practice commission. We must not deal with theories after all, but at present with necessities. The discussion here ought not to broaden out as much as it has already, but what shall this commission do, that is the practical question. We have already learned from Judge Gross that it is impossible that they can do that which the resolution demands of them to do, but might they not take up the practice act as it stands and do a great deal towards harmonizing the very discordant sections and bettering the practice in some particulars-they will have earned three hundred dollars if they do that. I do not understand Judge Gross that he means that this commission has to be abandoned altogether, I think his criticisms are well founded, but the commission will enter upon its work and whether it will be found successful at the legislative session hereafter, that remains to be seen. But it can discharge some simple duties. Do not let us forget, and I say this in the presence of the honored Chancellor of the Circuit Court here, that where the courts proceed without the intervention of a jury they can do complete, full and ample justice between the parties because in equity the record is open from the beginning, in the Circuit Court, and the Appellate Court, in the Supreme Court, and the early practice reports show that the Supreme Court mostly completed its work without sending back for new trial, unless there was some important error in the reception of testimony which might change the decree, and you will find in looking through the reports that the courts of chancery have that power, the Appellate Court has it and the Supreme Court has it by statute in this State, and when I said a little while ago it had not been done I knew whereof I spoke. They PROCEEDINGS. have complete power under the statute to declare a record amended and stand by the decree. MR. ANDREWS: Haven't they said once that we may consider the record amended in this court? MR. MOSES: Not as I remember. MR. ANDREWs: I think they have. MR. MOSES: I may be wrong about that, but it has been done so very rarely that we have forgotten it. It is a good power, a splendid power and ought to be exercised more often than it is. There is no trouble in the chancery courts of the State of Illinois whatever. There ought never to be a reversal in chancery simply to re-try a case. I was present in the Supreme Court of Louisiana three months ago; my preceptor in the law, Judge Carew, had sued for trespass on his plantation and when the cause was tried the jury was so prejudiced that they gave Judge Carew a verdict for $25. The court refused to set it aside; he went to the Supreme Court of Louisiana and under the practice there, notwithstanding the intervention of the jury that court changed the verdict and assessed damages of $2,000, and the controversy was ended. (Applause.) It is true the common law lawyers here say that it is impossible under our system, because the jury must pass upon the facts and they must pass upon the damages, hence the re-trials, the reversals, the remandings, sometimes four or five in one case. That is where the difficulty arises at common law. This practice commission can do some things. If I correctly understand Judge Gross, the record of our causes should be open to assign error everywhere and anywhere, without exception. Did I rightly understand him? Never should that be done. On the contrary, the practice commission should take out of the practice act that fatal amendment of 1874, that you may file exceptions any time during the term, have your record opened up and go over it, try to better the mistakes you have made during the trial, and then take the case to the Supreme Court and have it reversed on error, tech PROCEEDINGS. nical, perhaps, when the parties never dreamed there was error in the lower court, and the Judge never was advised there was any error. Take that out of the statute and say that if a liti- gant, through the lawyer wishes to preserve his rights he must file his exception during the progress of the cause, because it is in your power to waive error and you ought to do it. MR. ANDREWS: Would not everything be secured by requiring simply an objection? MR. MOSES: You are right, we can get along by an objection, but at least there should be a warning to the Judge trying the cause, or the party must be compelled to watch his own interest. It is the pride and boast of the common law that it teaches independence of action, vigilance and industry. If you take out the exceptions and objections from a record and permit it to be reversed by the Supreme Court it would simply mean that in the frailty of human judicial conduct every record would be rejected by the Supreme Court. Another thing I would like to see this practice commission undertake; that wherever in any cause of action a bond shall be given with surety, when judgment is entered that judgment shall also be entered against the surety with thirty days time for the surety to show cause why judgment shall not be vacated. (Applause). Here in Chicago a number of cases were settled last Saturday by a very rich lawyer who was able. to keep a poor woman in court for four or five years by simply appealing and appealing and appealing, and being sued upon the appeal bond, thus he has been able to keep this poor woman in court for five or six years and if it was not for a magnanimous lawyer the whole judgment would be eaten up by lawyer's fees. Now that can be remedied also by that practice commission. It is sometimes complained that the rules of the United States Court are too severe upon practitioners; that there you have to rise and make your exceptions to the instructions, when the jury is instructed. Now I do not find the least objection |