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gamut to the Supreme Court, the question may be for the first time raised in the Supreme Court." It strikes me that that is very dangerous. That is, "when urged," 1 understand to mean when urged in the reviewing court, that court shall consider all questions that may be raised by the record.

MR. ZEISLER: Raised in the court below, it says.

JUDGE GROSs: It reads this way: "When urged, courts of review to examine and pass on all questions raised in court below; whether formal exceptions have been preserved or not."

JUDGE HORTON: Yes, whether any exception to it or not; we will follow that with the decisions; a motion in writing for a new trial may be renewed in the Appellate Court whether it is called to the attention of the trial court or not. There is often question and objection made in the trial court, but that court has never had a chance to consider it; take the ordinary practice in nisi prius courts;-did you ever know a court to sit down and read all the details of a motion for a new trial and pass upon each one seriatim, and in nine cases out of ten there is only one of them presented to the court. They ought to be presented and let that court correct its errors before you bring them up in a reviewing court or the court of last resort; it is not in the interest of litigants or the administration of justice to run a man through the whole gamut of courts, but the best administration of justice is the quickest and at the least expense, in the least number of courts where absolute justice can be obtained. It is a question for very serious consideration.

MR. ANDREWS: There are one or two points in this report which I wish to speak of, but I think before saying anything I will say that this is one of the most commendable reports that I have ever had occasion to read, and I have studied a good many of them; not only because of the things it states, but the things it omits. The proceedings of the Bar Association of Illinois which in this respect merely voice or re

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The

flect the sentiments of the Bar of Illinois are unique in the history of legal reforms and testify to the excellence of the system of procedure which has survived all attacks. Commission, after suggestions extending over a year or two, has brought to our attention only a part condemned in these few items, in a report of sixteen pages, and touching not in any particular the integrity of the system. This, I say, testifies to the excellence of it, and I believe that the State of Illinois may be congratulated upon the fact that it has adhered to what is called the common law system of procedure. (Applause.) The attempts that have hitherto been made in the way of law reforms have generally been by a committee which has been paid, and at large expense and at such compensation as extended a temptation to delay. In this report there is not a word in reference to the system of common law pleading, that is left alone. I would suggest this one thought to this Commission, whether or not it would not be wise to express some sentiment or some idea in reference to the desirability of having a uniform rule of pleading; that the mode of alleging a fact may be the same in every court, equity, law and criminal, it is practically so now, but it is not very well understood.

Now in reference to one or two things I wish to call the attention of the Commission and the Bar specifically. The report has spoken of the firm liability, the joint liability; there is nothing in this syllabus which indicates how far they intend to go, but the difficult thing in the State of Illinois is not to recover a judgment, but how to levy and enforce the execution. Namely, you have an execution against a firm or one of the members of a firm,-how do you get at the firm property, that is a question which is always attended with difficulty and expense. How to execute a judgment against firm property; that is one question.

Now in reference to chancery pleading. The oath is spoken of here as though it were waived, but would it not be

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wise to remove all danger from a trap which now exists, especially for young lawyers to say that the answer under oath shall not amount to anything unless it is called for, instead of leaving it unless it is waived. Once in a while you will fall into a difficulty that you have not thought of.

Now there is one of the rejected points, it is the one in reference to the suggestion made by some one that the attachment law be applied to chancery proceedings. I should join generally in rejecting that proposition, but there will arise and often has arisen and there has arisen in my practice a situation where there ought to have been a provision in chancery by which the property of a non-resident against whom an action at law would not lie, but an action in chancery would lie, could be held for security for that debt.

The idea of the transfer of an equity case to a law court, or a law case to an equity court as we have here, is one of the best reliefs and all that could ever be accomplished by any system, and that of course should be encouraged.

There should also never be allowed any doubt to arise when the form of action is changed as to whether or not the statute of limitations has run by reason of the fact that you are basing your cause of action upon a different ground. Now ordinarily speaking, there is not much trouble in distinguishing between the cause of action as set up in the original count of a declaration and the cause of action brought in by way of amendment, you can generally distinguish between the two; generally see they are the same or they are different, but very often a new ground is stated and by reason of the difference in equity and common law pleading there may be quite a dif ference in the manner of alleging the cause of action. Now, if a court affirms that the claimant is endeavoring to follow up the same cause of action as in the beginning, then when the form of action is changed from the law to the equity court, and the case transferred there ought to be no danger of the statute of limitations. And I anticipate that the ease with

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which this Commission has succeeded in satisfying the Bar will not be the same when they come to drafting the provis ions which are to carry out their acts, and each one of them, whether they are worth a subsidy or not will provide enough litigation to pay a large subsidy.

MR. VAN HOOREBEKE: Mr. President and Gentlemen of the Association: I agree with a great deal of the report of the Practice Commission, or the suggestions that they have made here, but it seems to me that we ought not to ask for legislation on that which is already the law; that is, I do not believe we ought to encumber the statutes with law which is the law already, and I make this suggestion as to paragraph 8 on page 4. It says, bills of exception need not be sealed by the Judge signing the same. That is not the law now, and I agree with that part of it, but the next paragraph is the law now, a successor to any Circuit Judge can sign a bill of exceptions and it does not even require the stenographic notes of the reporter to do so. I had occasion twelve years ago to investigate that subject fully in a case which arose in the federal court at Springfield. The question came up after Judge Treat had died, on a motion for a new trial which was pending in the Federal Court and the attorneys on the other side insisted that they were entitled to a new trial as a matter of right because there was no Judge to sign a bill of exceptions and no Judge could pass upon the motion for a new trial, and that case was argued before Judge Gresham and he decided with me on that question, that that was the law, and in fact I found decisions in Pennsylvania and Georgia and Massachusetts and various other States and found it to be the common law also.

MR. MOSES: It is not the law in Illinois.

MR. VAN HOOREBEKE:

Gresham.

way.

It was so decided by Judge

MR. MOSES: Our Supreme Court decided it the other

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MR. VAN HOOREBEKE:

Here in the State of Illinois, on a trial had at Springfield Judge Gresham decided it to be the

law.

Judge Horton says it is not right for the reviewing court to examine the entire question when there are no objections urged in the court below; that I would agree in, but this question here is, "when urged, courts of review to examine and pass on all questions" raised in the court below. He goes one step further and says that the court ought not to be taken unawares. When the motion for a new trial is filed and the Judge passes on it he is supposed to pass upon the whole question; he ought not to overrule the motion for a new trial until he does pass upon it. Now if the motion is made and he refuses the motion and a formal exception is taken the whole case comes up in court for review, so when he passes upon the question of evidence or the admissibility of evidence, yet you have to enter a formal exception. Now, as I understand this paragraph, it simply does away with the formal exception, that is all that it does and no more.

The question he makes with reference to judgment and the sale after the redemption expires, after a year is given for redemption I think is a capital one. There is another reason for that: A large amount of costs accrue in all sales which the judgment debtor, if he is capable of redeeming, has to pay; if the redemption was fixed, say a year prior to the sale, those costs could be avoided and would not have to be made; if the redemption expired before the sale, the judgment debtor or parties bidding at the sale could bid the value of the property, whereas, if you make a sale before the time of redemption expires or immediately after the judgment, people knowing that a redemption may be made do not bid the value of the property, hence it is sold for the amount of the judgment and then misfortune may overtake the individual and there may be some judgment creditors and he may not be able to redeem and his property is sacrificed and lost.