PROCEEDINGS.

they started in chancery and ended in assumpsit. We could start and call it chancery and after a while when we found it was assumpsit we could change it; we could start a case for assault and end it with divorce-and that is very frequently done. (Laughter). But, laying all this levity aside, the statute for the proposed amendment by no means will lead to a bad result.

As to the statute of limitations, that cuts no figure. If a man starts an action on the case and puts in his declaration a certain count and his two years have gone by and then he amends with another count, which other count is not germane to the first count, the statute can be used against him I think the Bar Association ought to do something on this matter. I myself have been brash enough to favor not only this section, but fifteen or twenty other sections, which have worked well in other states. I regret to say that the time of the Bar Association of the State and the county and the city is devoted almost entirely to eating dinners and accomplishing very little results. Our procedure is about as much in line with what our modern practice should be as the old prairie schooner was to the present Pullman Palace car. It is time we were doing something.

The motion upon the adoption of the first section was thereupon put by the Chair, seconded and adopted.

PRESIDENT HAMLINE: The second section reads as follows: "That the right of appeal shall be limited to one appellate tribunal unless in case of appeal from the Appellate to the Supreme Court application be made to at least two members of the Supreme Court and a supersedeas or such other writ as may be necessary be allowed, but that the right of appeal shall be limited to one appellate tribunal."

MR. HIRSCHL: I am opposed to the section as it is there. It is not sufficient, because if you win in the Circuit Court and your opponent appeals to the Appellate Court, and he wins in the Appellate Court, there you are. (Laughter.) The system in Australia, as I understand it, and in France, is the correct system. If you win in the Circuit Court and your opponent goes to the Appellate Court and you win in the Appellate Court, that ends it, but if he wins in the Appellate Court then you go to the Supreme Court; it is tossing pennies, it is two out of three. If you win the first and second, that ends him;

PROCEEDINGS.

if you win the first and he the second, that is an even stand off, then you go to the Supreme Court.

Speaking to this subject, I think it should be further amended, I think, Mr. President, that no cause should ever be remanded, I don't believe in doing the same work twice in this world. I am opposed to doing anything twice. I believe the Appellate Court, when it decides a case which the jury decided for the plaintiff, and reverses it, ought not to remand. I think the case should go then to the Supreme Court; when the Supreme Court decides, it ought not to remand. I think the seven gentlemen who sit at Springfield ought to be ultimate arbiters of law and fact and decide the case on its merits.

MR. RAE: The State Bar Association, a priori, I suppose, is presumed to be a learned body; the resolution overlooks, in my opinion, a constitutional objection. The judiciary article of the constitution provides, there shall be but one Supreme Court, and it shall be invested with all judicial powers, except when in the same instrument it be otherwise provided. The Supreme Court, thus vested with all judicial powers in the first section of the judiciary article, can exercise all of those powers except those which are otherwise provided in the seeond section. The second section otherwise provides as to the exercise of certain judicial powers and provides that, after enumerating certain original jurisdictions, it shall have appellate jurisdiction in all other cases. This is a provision of the constitution, that the Supreme Court shall have appellate jur isdiction in all cases except those which are enumerated as cases of original jurisdiction. Now, an act of the legislature can neither enlarge jurisdiction of the Supreme Court, nor can it narrow it. It exists by virtue of the constitution, and exists by it alone. If we have but one appellate court it must be, in the nature of things, as the constitution has provided, the Supreme Court, because the constitution has conferred appellate powers upon the Supreme Court, and if the legislature should pass a law in which it is provided that the Appellate Court should have jurisdiction only, then we are attempting to take from the Supreme Court of the State its judicial power in all cases, which I think no learned lawyer here, or a man of reflec tion, will for a moment contend. If we pass such a resolution as that, the thoughtful mind, the discriminating mind of the lawyer at large, supposed to be informed of the provisions of the Constitution of Illinois, will wonder why we overlooked so

PROCEEDINGS.

It

obvious an objection. I merely make the suggestion. seems to me an objection, that we can make no other court a court of ultimate resort than the Supreme Court of Illinois. A vote was taken upon the motion to adopt the second section of the report of the Committee on Law Reform and the same was lost.

PRESIDENT HAMLINE: The third section reads as follows: "That the statute requiring instructions to juries to be in writing, be repealed. restoring to Judges the common law right of instructing juries."

MR. MOSES: I move the adoption of the section.

Motion was seconded.

MR. HIRSCHL: When this question was debated last winter, we started in at the Palmer House, and the Chairman of the meeeting had all the Judges who favored oral instructions speak, and they all spoke, and the newspapers took it up and said the whole bench was for the oral instructions; after the reporters left the banquet another fellow and myself got up and opposed oral instructions and kept them from voting; then they adjourned it two or three times, and we got some reinforcements, and Brother Ashcraft and Judge Neeley came in and we just mopped the floor with the other fellows, so when the vote was taken, of the 500 members of the Bar Association of Chicago, only 114 favored oral instructions. I mean by that, not only instructions as to law, but also the common law instructions upon the facts, the summing up of the evidence.

I want to endorse what Brother Mann has said, that there are not enough judges upon the bench who know the law sufficiently to give oral instructions upon the law and fact. Lord Bacon says that reading maketh a full man and speaking a ready man, and writing an accurate man, and it requires a great deal of accuracy to give good written instructions, and very few of them can do it unless they take pains with it, and then they are frequently reversed. How much more often would they be reversed if they would glibly, and off hand, try to instruct a jury orally. Perhaps the stenographer wouldn't understand it correctly, and the report might be wrong, even if the Judge was right. I put my vote upon record as a protest, that there would be still more reversals than there are now if you have oral instructions. The Judges might be able

PROCEEDINGS.

In

to accomplish more, but I put it upon the one point of error in the record. You must have written instructions to secure accuracy. There might be one amendment, and that is that the instructions shall be submitted to the opposing counsel before they are given to the jury, and he be required to point out in writing whatever objections there are, and let the instructions be amended before they are given to the jury. the Iowa system we had written instructions, but the Judge wrote the whole charge from beginning to end consecutively, took his time to it and it was a model, and we had Judges upon the bench no greater than the Judges here, but the practice that they adopted and the experience that they gained while doing the work in that way made their charges models of accuracy and perspicuity, and nobody there would do away with that power and go back to the oral instructions.

MR. MOSES: I would like to correct Mr. Hirschl's statement as to the vote heretofore reported upon this question, published in the Legal News. As I recollect it, 190 were in favor of oral instructions as to the law, and a less number as to both propositions, law and fact, and a small minority against the proposition.

MR. HIRSCHL: 190 votes, as you say; but out of those 190-a part of those very 190, there were only 114 who favored the present resolution; it was not 190 for oral instructions and another 114 for something else, but 114 was part of the 190, so it was literally as I say, only 114 who were in favor of the present resolution, that is, oral instructions covering the law and fact; am I right?

MR. WILLIAMS: It seems to me that the advantage sought to be gained by this, which is desirable, would be gained by the Massachusetts practice, which I understand to be that counsel on the other side present to the court proposi-. tions of law, and therefrom the court makes up his charge.

PRESIDENT HAMLINE: All in favor of adopting the third section will say aye. The Chair is in doubt. All who are in favor of adopting section three of the report will rise and stand until counted. The Chair makes 18. Those who are opposed will rise and be counted-26. The motion is lost.

PRESIDENT HAMLINE: The next order of business is the report of the Necrologist, James B. Bradwell.

[The report appears in Part II.]

PROCEEDINGS.

MR. MOSES: I move that the report be adopted.

Motion was seconded and unanimously carried.

MR. ORENDORFF: The Committee on Membership report the following applicants for membership and move that they be admitted:

Charles E. Scharlau.....

James M. Sheean.

Motion was seconded and unanimously carried.

PRESIDENT HAMLINE:

Chicago
Galena

The next order of exercises is the report of the Committee on Legal History and Biography, by Elliott Anthony.

MR. MOSES: Mr. President, Judge Anthony has been ill for quite a time. He sent to me two sheets of a brief report, but inasmuch as there is so little time left, I will simply present it and ask that it be printed in the minutes.

PRESIDENT HAMLINE:

ordered.

If there is no objection it is so or

The report is as follows:

The Committee on "Legal History and Biography" would beg leave to report that owing to the continued ill health of the chairman, not much has been done towards extending its researches to either legal history or legal biography during this year.

The subject, however, is one which should in our judgment engage the earnest attention of this Association and will as time passes be found of great interest not only to members of the profession but to the public generally.

A few years ago an effort was made to procure a sketch of all the Attorneys General of the State, commencing with the formation of the State government, and Attorney General Moloney undertook that task, and he, as we were informed, confided it to Hon. Martin L. Newell, one of his assistants. Mr. Newell, we believe, collected much valuable material relating to these officers but did not complete the undertaking. If Mr. Newell could be induced to furnish the Association with the results of his investigation it would be greatly appreciated, as some of the early attorneys general figured conspicuously in many of the stirring events of our history.

Another thing, the late Mason Brayman undertook to write a sketch of the acts and doings of the constitutional convention of 1848 and had progressed considerably before called to his last account. Although not a member of that body he reported its proceedings from its opening to its close for a St. Louis paper and preserved the papers containing these reports. The incomplete sketch of the convention is in the hands of his daughter, Mrs. Theodore Gowdy, Kansas City. This sketch should be procured if possible. It would constitute a most interesting contribution to our constitutional history.