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or the highest court in the realm. formerly tried in the High Court of before the Chief Justice, and at last Lords for final decision.

Everything that was Chancery is now tried goes to the House of

In this country we have a chancery practice and a common law practice, all before the same judge, as in England; but we also hold on to the old form. There may be amendments that would help us out. When a man gets into chancery and finds that his suit ought to have been brought on the common law side of the court, let him be permitted to transfer his case to the common law docket. But the general principles of the common law apply to everything; they are the foundations of our society. The common law system—its pleadings and procedure and everything embraced in it—is one of the best systems ever invented, if you can use the term "invented" concerning a system which has grown up by gradual degrees during hundreds and thousands of years. What What was the civil law? The civil law was was the Code? symply a system of law that was made by the decretals of the Roman Emperor. As it was discovered from time to time that some rule ought to be adopted in regard to some civil right, the Emperor would simply make a little decree on the subject. So the civil law grew up and was recorded in books called the Pandects, which were discovered a few hundred years ago. It was simply a kind of common law, much like

ours.

There never will be any civilized society without some kind of a common law, that grows up with the growth of the country and flourishes and becomes intelligent as the people become intelligent. It will have to be amended from time to time, but it will remain, after all, the great system of the common law. [Applause.]

MR. BRADWELL: I admire some parts of the gentleman's address on the "Unwisdom of the Common Law," especially when he seeks to knock out those old customs which time has shown were unwise. But many of those things have been knocked out. Things that were part of the common law once When the body of Ben Jonson was brought are not so now. up for murder, under the common law, the custom of EngSuch land, he claimed the benefit of clergy and stuck his hand out and had the word "murderer" put upon his thumb.

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barbarous customs do not exist here. It is a good thing that so many of the rules of the common law are found inapplicable and knocked out, not by legislation, but by the courts. There are more laws repealed in that way than the legislature ever repealed by special acts, and it is a good thing that it is so. As Judge Lacy well remarked, there is a great deal of nonsense and a great deal of surplusage about the common law; but you take the old common law in its purity— take the old common law before it was encumbered with its surplusage take it as it was administered in the old county courts of England centuries ago, when the parties came forward in court without written pleadings, and there was noted down in a book what was claimed, and the judge gave a verdict. Why, Judge Payne could try ten cases where he now tries one. I was glad to hear the gentleman speak of some of those old customs of common law that have passed away. And now let us get rid of some more of them. Let us get rid of some of the surplusage, if we don't abolish it altogether.

MR. SCOTT: I think, when we get down to it, we shall find that all of us stand on the same platform. The title of the gentleman's able paper was "The Unwisdom of the Common Law." From the skill with which he handled the subject, I have no doubt that if his subject had been "The Wisdom of the Common Law," he would have found as much to praise as any one on this floor. To attack the common law before a body of American lawyers would be a most futile thing. The common law covers every phase of our complex society. I do not understand Mr. Courtney's paper as an attack on the common law. The common law is simply an expression of the results of the experience of the Englishspeaking race. It was not made to fit all possible future cases, but to apply to cases as they should arise; and being the expression of the experience of the race, it could no more be discarded than the oxygen in the air. So I understand Mr. Courtney in his paper; that he is simply pointing out the unwise features of a wise system.

MR. TAYLOR: It strikes me that it would be a very hard. thing to abolish the common law system and put something else in its place. There is nothing more true than that no system was ever invented and perfected at the same time. The common law is the growth of the experience of the Eng

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lish people. We have added to it; and like the last gentleman on the floor, I believe Mr. Courtney could have said as much in favor of the wisdom as of the unwisdom of the common law. In other words he selected the things we have outgrown. But experience shows that there is much wisdom in retaining the practice and procedure of the common law. Commence a law suit under the code; they will cut it up; for certain parts of it you must recover in a court of law; for the rest you must apply to a court of equity. They will apply one set of rules to the decision of one part of the case, and other rules to the decision of the remainder. It has been said that a man may sue on a promissory note, and that, before he gets through, he may be indicted for murder. (Laughter). Under the common law, the party knows just how to answer the claim. Take the code States to-day; go through their reports and see the immense number of their opinions that are simply opinions upon questions of practice; which shows that code procedure has not been reduced to a certainty, even in the oldest States, and I think perhaps the strongest proof of this is to be found in New York. I think there were only four volumes of practice reports in the State of New York before the adoption of the code; since that time nearly one hundred volumes of practice reports have been published.

In our own State, there are very few cases disposed of now on purely questions of practice, because we have laid down well-understood rules. We have somewhat simplified the common law practice. There is now no necessity for drawing pleadings with the precision of the old forms. The courts do not require it, our practice does not require it. The man who can state his case most precisely to the court, whether it be in a declaration or a plea, makes the best pleading. He does not need to follow Chitty all the way through; he must conform substantially to the rules, and if he does that, it is certain an issue will be arrived at. But my experience, from going now and then into other States, is that it is the hardest thing in the world to get at an issue, and that, when the issue is made up, it is hard for the court to make up its mind whether the party is entitled to legal or equitable relief. I am in hopes there will be no effort to make a very great change in this State. I would like to see our practice rid of some of its excrescences; but I think the

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moment, at one fell swoop, we abolish the common law practice and procedure and manufacture a code, we are at the beginning of our troubles.

MR. WHEELER: I was very highly entertained by the paper of Mr. Courtney. He did not attempt to tell us (because, I suppose, he assumed we ought to know it,) in how many instances and cases of supposed unwisdom the common law has been changed. So far as the criticism made upon the rule in Shelley's Case is concerned, this Association stands thoroughly committed to a repeal of the rule as applied in Shelley's Case, and it rests with the legislative branch of the government that it has not been done; because, I think, more than four years ago this Association adopted a resolution on the subject, and the General Assembly was then memorialized, or requested at least, to pass a bill that was prepared repealing the rule in Shelley's Case. I think, however, that that is in the interest of ignorance. Yet perhaps the interests of those who are ignorant must be looked to. The very case cited by the judge, of the German in Chicago who attempted to devise the fee of his estate to his grand-children, with a life estate to his children, is but a repetition of what we often see. Yet, if he had been less frugal and employed some lawyer to write his will, or consulted some lawyer about it, there would have been no difficulty; because every lawyer in the land now knows what is necessary to devise an estate and what words are necessary to constitute a limitation. But this Association, I say, is committed to that view.

Now, with regard to the subject of pleading, I know there has been in this state certainly a contingent (whether large or small I am not prepared to say) that has been constantly clamoring for the wiping out of our common law system of pleading, without ever suggesting anything that would be better; without ever suggesting any plan or method or system of pleading that could possibly be an improvement upon what we have now. The class, I believe, is made up of men who are anxious for a change of any kind, without stopping to reflect whether it will be beneficial or not. It looks to me like the old prayer of "good Lord, good devil, into whosoever hands we may fall we just want to be taken care of." There are some things in our system of pleading which I think ought to be changed. I think this Association is committed to that view.

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At all events, I know that changes have been advocated, and when I had the honor of filling the position that you are now in, Mr. President, I advocated a change, and that was the abolition of the general issue in pleading. I think that would be a wholesome provision. I think it would also be a wholesome provision, although the matter perhaps was not referred to by the essayist, and it has been suggested by others today, to provide by legislative enactment that in all cases where a suitor gets into the wrong tribunal, either legal when he should be in a court of equity, or vice versa, when that fact is discovered he should have the right to amend his pleading and lose none of his rights thereby; that his suit should be considered as commenced at the time his bill was filed or the summons issued.

MR. GROSS: I should like to ask the gentleman a question. May that not be done now under our statute?

MR. WHEELER: I think not. I am almost sure it cannot, for if it could be it surely would have been done. We very frequently see our suitors turned out of a court of equity, and if the statute of limitations has begun to run, or if there is any other bar, it dates from the time the summons is issued.

MR. GROSS: May not the suitor now change his form of action?

MR. WHEELER: That is true. There is a provision in our practice act to that effect, but that does not apply to chancery procedure. Our practice act has no application to chancery procedure. The universal holding, so far as I know -and I appeal to any one here who may know to the contrary is that the provisions of what we term our practice act are applicable only to cases at law and not to suits in equity. With those provisions I should be perfectly content, and think they would be wholesome. But I do not believe in an overhauling of the general system of pleading and trusting to pure luck (if there is such a term as "pure luck" to be used in this sense) to get something that would be wholesome and effective. When you reflect for a moment that you must go before the popular branch of the State government for any change in our system of pleading, you can arrive at but one conclusion, and that is that you would be