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action. Experience has taught us that we can follow no safer guides than the forms set forth in Chitty's Pleading, in the main. We are not obliged to follow its verbiage. What we must do in every instance is to set forth in apt language the cause of action. As to the distinction between law and equity, that matter has been referred to on previous occasions, and for one I would not like to see the distinction broken up. I think it is a rational, a philosophical and a reasonable. distinction. But what I cannot understand is, why a suitor, when he happens to drop in on the chancery side of the court and discovers that he is there erroneously, cannot get on the other side of the fence without being kicked out of court. He should be permitted to have his case shifted from one docket to the other, and to amend his pleading to fit his cause of action. There are some changes, I say, which ought to be made; but don't talk about code pleading in Illinois, because you will set us all raving at once.
MR. COURTNEY: Mr. President, it is to be deeply regretted. indeed that so many of these able lawyers should have entirely misapprehended the scope and purpose of the essay. It should be remembered that I stated at the start that many of the principles of the common law, many of its rules, many of its doctrines, have their foundation in the deepest philosophy. They are indeed grand. But it is, as Judge Payne says, the excrescences of the law that I attack. And there are a few more of them, that nothing has been said of, with reference. to the whole body of the law of real estate. There is not a lawyer here to-day—and there are some able lawyers and judges here, as able as you will find anywhere—that can tell you the difference between an executory devise and a contingent remainder. And when you go into the library and search it out, it is so fine that when you get back to this hall you will have forgotten the distinction. Contingent remainders, vested remainders, fees-tail and thousands of other doctrines that are in force in the State of Illinois, had their origin in feudal times—in the age of vassalage—hundreds of years ago, when our ancestors wore armor, when they were clad in complete steel, and wore long hair and fought one another.. These are the things which I attacked in my essay. I should be very foolish indeed, in a body of able lawyers, to attack the common law in its entirety.
Every time a question with reference to pleading is presented, the New York code is brought forward as an example. But there is no lawyer, Mr. President, that ever attacked the California code of pleading and practice. In California the common law practice has been codified. England now has a code. The State of Louisiana has a code and has possessed it for many years. The California code is something like the common counts. Your pleas are presented with all their verbiage taken away from them. That is a model code; it could not be called a code. Let us not have any code, but just eliminate the excrescences of the common law.
MR. McNEELY: I desire to correct my friend in one particular. I was in California in 1865, and remained there a year or so and practiced law. The first book I took into my hand to prepare myself for the practice of law in that State was Sanford's New York Code. Although California had then been in the Union only fifteen years, there were more decisions of the Supreme Court of California on pleadings and practice under the code than there was in Illinois, with over forty years of experience.
MR. SHERMAN: It is true, and I do not suppose it was necessary for Judge Payne or any one else to tell us, that the essayist did not attempt to attack the common law. But some zealous brother here, whom I will not name, had the unwisdom to arise and precipitate into the midst of this body a remarkable statement of the late Lord Chief Justice of England, who, he said, had proposed that Illinois should be set apart as a verdant spot in which the common law and its practice and pleadings should be perpetually exhibited for the delectation of more sensible people that reside on other parts of the planet. [Laughter]. Now, this remarkable statement from such an eminent source led to this discussion. I do not think it has been wholly unprofitable, and now that the "gas bag” has been so thoroughly punctured, I think we may all go away content with the result.
MR. PAYNE: I want to add a suggestion. I have heard this question discussed before, and recently I had the curiosity to take down two volumes of the Illinois Supreme Court reports. In the 150th volume, there are seventy-eight cases reported. Out of these seventy-eight, thirty-three discuss and decide practice questions. In the 154 Illinois, there are sixty-seven cases, and of this number twenty-four discuss, consider and
decide practice questions. It is true that the practice questions are not controlling in a majority of these cases; but the time of the court and the argument of counsel are devoted in large part to the consideration of practice questions in onethird of all the cases decided by the Supreme Court of Illinois in the
of our Lord, 1895. MR. Scott: It should be remembered that the Supreme Court considers questions of law only. Questions of fact are decided before the cases reach that court. It is not at all astonishing that there should be frequent reference to questions of practice.
MR. BRADWELL: I tell you there are plenty of lawyers in the State of Illinois that are in favor of a code, although they may not belong to this Association. I struck them as far back as 1874. I introduced and passed through the House a bill embodying the English common law procedure. Mr. Trude introduced a code and fought my bill. I said, “I will join hands with Mr. Trude and we will pass a code bill.” But they went to work and passed my English common law procedure bill through the House. It was a pretty good bill, but it failed to get through the Senate.
The Association adjourned until 9:30 Friday morning.
FRIDAY The Association convened at 9:30 Friday morning, with President Harker in the chair.
PRESIDENT HARKER: In the call of yesterday's programme several reports of committees were passed. I understand some of these committees are ready to report this morning. I believe, Gen. Hamilton, you have a report.
Mr. Hamilton presented the report of the committee to whom was referred the report of the Treasurer. The committee's report was as follows: To the State Bar Association, Springfield, Illinois :
GENTLEMEN: Your committee to whom was referred the report of the Treasurer, with vouchers and bank book, respectfully report that they have carefully examined the same, and find that the Treasurer, J. H. Matheny, Esq., has received from all sources since
January 28th, 1895, sums to the amount of $1,181.42. The proper vouchers and receipts from Nos. 1 to 30 inclusive, were presented for payments and expenses to the amount of $897.32, leaving a balance in his hands of $284.10. That we find from the bank book presented us, in the name of J. H. Matheny, Treasurer Illinois State Bar Association, a balance to his credit on January 21, 1896, of $286.10. The discrepancy is accounted for by the fact that one check drawn by the Treasurer for one receipt of $2 had not been presented to the bank on said last named date.
We find that the report, receipts, and vouchers, and payments made are correct; that the Treasurer should be allowed credit for the said payments by him made, as shown by said vouchers, to the amount of $897.32, and that he should stand charged with said balance of $284.10. All of which is respectfully submitted.
E B. HAMILTON.
Committee. PRESIDENT HARKER: What is the pleasure of the Association as to the report?
MR. GROSS: I move that the report be received and the committee discharged.
The motion prevailed.
Mr. Gross then presented the report of the Committee on Nominations, as follows:
The Committee on Nomination of Officers beg to report: For office of President, John H. Hamline, of Chicago; for office of VicePresident, Ist, L. L. Bond, of Chicago; 2d, E. B. Hamilton, of Quincy; 3d, W. M. Farmer, of Vandalia; for office of SecretaryTreasurer, James II. Matheny, of Springfield. Which is respectfully submitted.
W. L. Gross, Chairman. MR. GROSS: I am directed by the committee to move the adoption of this report. Before that question is put, I desire to say that the committee deemed it unwise to attempt to nominate the standing committees; that that duty should be cast upon the incoming President that he may have, to that
extent, the proper control and direction of the business of the Association through its standing committees for the coming year. The motion is that the report be received and adopted.
PPESIDENT HARKER: You have heard the motion. Do I understand, Judge Gross, that this motion carries with it the relief of the committee from the duty of nominating the committees?
MR. GROSS: The report leaves that duty resting upon the incoming President, whose duty it is under the constitution to appoint the committees.
PRESIDENT HARKER: If I remember, you and the presiding officer had a little controversy on that point last year.
MR. GROSS: Yes, a little tilt.
PRESIDENT HARKER: And I think the Association decided that the power of appointing the committees resided with the President-elect.
MR. GROSS: My motion is that the report of the committee nominating the persons named for the respective offices be received and adopted.
PRESIDENT HARKER: I understand now. I did not understand the motion before. The motion is that the report of the Committee on Nominations be received and adopted.
The motion was carried.
Mr. Williams presented the report of the Committee on Law Reform, as follows:
REPORT OF COMMITTEE ON LAW REFORM.
To the Bar Association of the State of Illinois :
Your Committee on Law Reform would respectfully recommend such amendment of the statute as will make the decisions of the Appellate Court on questions of fact, final in all cases.
Your Committee further recommend such legislation as that in any case in law or equity where the point shall be presented, and the court shall hold that the case has been brought the wrong side of the court, the court shall allow the party plaintiff, or complainant, to have his case transferred to the proper side of the court, upon filing