REPORT OF COMMITTEE ON PRACTICE IN CIRCUIT COURTS.

To the President and Members of the Association:

Your committee desires to file the following report:

There are a great number of changes that might be made both in the Civil and Criminal practice which would be of great benefit in the administration of justice in the Circuits Courts of this State. We will not undertake to mention all of them, but will call attention to a few of them.

For convenience, we will discuss the subject under these subheads:
I. Time and Manner of Pleading.

TIME AND MANNER OF PLEADING.

In our judgment, this practice should be uniform in the Circuit and Chancery Courts. This would not only tend to simplification, but, if the following suggestions were enacted into a law, we believe that many unnecessary delays would be avoided.

The law should provide that, when a complaint is filed, defendant should have twenty days within which to plead, answer or demur to the complaint, and that all complaints, in order to entitle plaintiff to judgment, must be filed twenty days before the first day of the term to which the suit is brought.

When any pleading is filed to a complaint, other than the answer, the same shall be presented to the Judge, in chambers, within twenty days thereafter, and his decision obtained thereon; providing, the Judge may, for good cause, postpone his decision thereon until the ensuing term of court.

The last paragraph may be objected to, on the ground that it would be unconstitutional, but, as it has relation to procedure, and not to matters of right, we do not believe that this objection could be successfully interposed.

We believe that, if the procedure contended for should be adopted, the issues in most cases would be made up before trial day, and we would not be compelled, as is now the case in the country circuits, to wait six months after bringing a suit before obtaining a trial.

II.

PRACTICE IN ATTACHMENT SUITS.

Members of the Bar know that the remedy of attachment is harsh and often works a great injustice to the defendant. They also know

that, when such is the case, it is often impossible to obtain compensation in damages.

We suggest that the procedure upon attachment should be changed, so as to permit the defendant, after giving ten days' notice in writing to the plaintiff, to move to dissolve the attachment at any time before the first day of the term to which the suit is brought. This motion should be heard before the Judge, in chambers, and, if it is ascertained on such hearing that no ground for attachment exists, the Judge to order a dissolution of attachment. In such cases, after hearing the evidence, the Judge would always be able to ascertain whether or not any ground for attachment existed. As the law now is, this motion can not be made, except in instances where the defendant is unable to give bond.

In all attachment suits, the law should expressly provide that the Judge should hear and determine the question as to whether or not ground for attachment exists, without the intervention of a jury. Juries will not dissolve attachments where they give judgment to the plaintiff for his debt.

If the above suggestions were adopted, the lengthy suits for damages, often arising in the trial of attachment cases, would be practically eliminated. In every attachment suit, where there is room to differ as to whether or not there is any ground for attachment, the defendant usually produces a number of witnesses to show the amount and extent of his damages, and, no matter how meritorious his claim for damages may be, he must rest his case upon the decision of the jury as to the law of attachments. It is difficult enough for those trained in the law to decide questions of this nature, and it ought not to be referred to juries. This change would be unnecessary, were it not for the recent decisions of our Supreme Court on this subject.

Under this head, we might mention the harshness of a strict enforcement of the garnishment laws.

As these laws are in derogation of the Common Law, they must be strictly enforced. Great injustice is sometimes worked upon litigants. "A" sues "B" and files allegations and interrogatories, together with a bond. He sets out that he has reason to believe that "C" has funds in his hands belonging to "B." "C" answers and says he has $1,500.00 in his hands belonging to "B" and turns it into the registry of the Court.

It may be six months, or more, before the matter is adjudicated, and all this time the funds are withdrawn from circulation, and no one receives any benefit therefrom. "B" should have the right to execute a cross bond, as in attachment cases, and retain the funds until final judgment.

As a final suggestion, as to changes in the Civil Practice and Procedure, we are of the opinion that perhaps the best remedy is to have a committee of able and competent attorneys appointed and let them draft an entirely new Code of Civil Practice and Procedure, and have it apply to all the Courts of the State.

III.

CRIMINAL PRACTICE.

Under this head, we desire to call your attention to the very striking difference betwen our criminal procedure and that of England. In doing so, we quote liberally from the report hereinafter mentioned.

Some time ago, the American Institute of Criminal Law and Criminology appointed a committee of jusists, practicing lawyers and students to enquire into the system of criminal law and procedure in England. The report of this committee has been published in this country, and, from that report, we learn the following interesting facts:

JUSTICE OF THE PEACE.

Unlike the American Justice of the Peace, who is a petty judicial officer, elected, generally, for a short term and with power to try civil cases, as well as minor criminal offenses, and also to commit for trial, the English Justice of the Peace takes high rank, both in society and in legal administration. He is usually a man of standing in the community. He has no jurisdiction in ordinary civil causes, but hears and determines minor offenses, and in serious ones commits for trial at the Quarter Session of Assizes. He recives no compensation, but accepts the labor and the responsibility of the office on account of its dignity and out of public spirit, both of which are lacking with our magistrates.

BAIL.

Though there is no limitation in the right to grant bail in criminal cases, such as some of our State Constitutions contain, it being a matter of discretion for the Court, yet, it is rarely granted in cases of felony.

STARTING THE PROSECUTION.

The prosecution is started either by arrests or summons. The summons is used largely in offenses not involving any serious consequences, when it is not likely that the accused will endeavor to escape. If the summons, to attend Court and answer the criminal charge, is not obeyed, the warrant is then issued. A warrant must never be issued for the arrest of a person whose attendance can be secured by summons. After the commitment by the magistrate, the proceedings are continued by information, indictment or coroner's inquisition. The verdict of a coroner's jury charging murder or manslaughter has the same effect as an indictment.

DEFECTS IN INDICTMENTS.

This subject, which plays such important a part in our criminal appeals, and which is the ground for so many reversals in our Courts, and it may be said is frequently the cause of miscarriage of justice, is

practically unheard-of in England. There is really no use in an English lawyer of today relying upon a defect in an indictment to help him out, for, in the first place, the indictments are brief, and without any technical words; in the second place, every objection to an indictment must be made by a motion to quash, or demurrer, before the jury is sworn; and, in the third place, the Court will always amend the indictment to make it fit the case.

We are all familiar with the complicated mass of words, phrases, great particularity, saids, aforesaids and other rubbish in our indictments for murder. Listen to the following indictment for murder in the first degree:

"The jurors for our Lord, the King, upon their oath, present that John Doe, on January 16, 1904, feloniously, wilfully and of his malice aforethought, did kill and murder one Richard Roe, against the peace of our Lord, the King, his Crown and Dignity."

THE PROSECUTOR.

There are no such officers in England as our prosecuting attorneys. Prosecutions are begun and carried through by either (1) a private person, called the "prosecutor," usually the sufferer by the criminal act, (2) the police, or (3) the Director of Public Proescutions.

(1) The private prosecutor begins the prosecution, and employs counsel to conduct it. At the trial, he has no standing, other than a witness, and is not permitted to take part in the conduct of the case. His costs are provided for by the statute, and his duty ends with the conviction or acquittal of the prisoner.

(2) If the complainant is poor or is unwilling to prosecute, or if there is no complainant but the police, then the police carry on the prosecution with counsel supplied by the Crown.

(3) The Director of Public Prosecution is an official, appointed by the Government, whose duty it is, under the superintendence of the Attorney General, to institute or carry on criminal proceedings in such cases which appear to him to be of importance, or advise persons concerned in such procedings; and to appear for the Crown in criminal appeals.

THE JURY.

The qualifications of a juror are ownership of real estate, or that he is a householder paying a certain rental.

A man is not considered having a bias simply because he may have expressed an opinion on the facts of the case, as he has heard them from others or read them in newspapers.

Challenges of a juror are very rare. In felonies, the
Crown has none.

twenty peremptory challenges, but the
peremptory challenge in misdemeanors.

accused has There is no

Challenges for cause being:

First: That he is a Peer or Lord of Parliament.

Second: That he is personally deficient, as an infant, alien, lunatic.
Third: He is an outlaw or convict.

Fourth: That he is biased on account of words, relationship or employment.

Neither the Crown or the defense is permitted to go on a fishing expedition, in the hope of discovering from the juror's answer some ground which they had no previous evidence to support. And a challenge that the juror is biased must be proved by evidence aliunde; it is not allowable to ask a juryman whether he has an opinion or has expressed one. The counsel must challenge the juror he objects to, must state the ground of his bias and must then produce a witness in support of his charge. The examination of a juror on the voir dire is unknown. From the day the prosecution is begun until the jury renders a verdict, a newspaper is not permitted to comment upon the evidence or express opinions upon the guilt or innocence of the prisoner. Such comment, which would be likely to influence the minds of persons who might become jurors, is a contempt of Court, and is severely punished.

THE POWERS AND ATTITUDE OF A JUDGE.

The presiding Judge takes a very active part in the trial of criminal He directs the proceedings at every stage, and is the active controlling power throughout the trial.

cases.

If the Judge is of the opinion, at any stage of the proceedings, the the evidence presented the jury should not convict, he may stop the case and direct the jury to return a verdict of not guilty.

The Judge, of his own initiative, may call and examnie witnesses, who are not put on the stand for the prosecution or defense, and it lies in the discretion of the Judge whether he will permit these witnesses to be cross examined by either counsel.

After counsel has addressed the jury, the Judge reviews the evidence in detail and directs the jury as to the law governing the facts. In this summing up, the Judge generally expresses his opinion regarding the weight and importance of the evidence. The Judge, in this summing up, may also comment on the character and demeanor of the witnesses.

If the jury is convinced, at the close of the prosecutor's case, or at any time during the presenting of the evidence for the defense, that the prisoner is not guilty, the foreman stops the case and pronounces a verdict of acquittal.

EXPEDITION.

Expedition in the bringing of a prisoner to trial and in disposing of the case is very marked, a very short time elapsing between the committal of the prisoner and his trial. There is no putting a case off from