ADDRESS

OF

WILLIAM J. ROBERTSON,

President of the Association.

Gentlemen of the Virginia State Bar Association:

I proceed to discharge one of the duties imposed on me by the Constitution, by making "such suggestions as to the work of the Association" as have occurred to me as proper to be made at the present time.

A little more than nineteen years ago an act was passed by the General Assembly of Virginia, in the following words, viz. :

"1. That to the end of promoting uniformity in the practice of the courts of this Commonwealth, and brevity and succinctness in all pleadings and proceedings in the said courts, and of preventing expense and delays, it shall be the duty of the Supreme Court of Appeals, as soon as practicable, to prepare a system of rules to regulate the practice in the said courts; to prepare a system, or systems, of pleadings to be used in the said courts; and to prepare the forms of such pleadings and of the process to be used in said courts.

"2. That the said Court of Appeals, so soon as they shall have prepared the system of rules and pleadings provided for in the foregoing section, shall report their proceedings under this act to the General Assembly in order to further legislation in the premises.

"3. This act shall be in force from its passage.

The foregoing act was approved by the Governor on the 9th day of July, 1870 (see Acts of 1869-'70, chapter 229, page 365); and being, by its terms, in force from that day, no better evidence could be afforded of the slow pace at which law reform moves with us, than the fact that up to the present time no action whatsoever has been taken under it.

If the Court of Appeals has, at any time since its passage, been of opinion that it is inexpedient to make any change in our existing rules of practice or system of pleadings, it would doubtless have made an end of the matter, as far as it was concerned, by so reporting to the Legislature. Indeed, we have no reason to suppose that such an opinion is, or at any time since the passage of the law has been, entertained by a single member of that learned court.

The common law distinction between different forms of action still exists in Virginia, and the case of Taylor v. Rainbow, 2 Hening and Munford, 423, fairly indicates the danger incurred by a party whose counsel may happen to mistake the form of action prescribed for his demand. In the case referred to, a plaintiff who had recovered a judgment for damages for the loss of his leg by the negligent discharge of a gun by the defendant, had that judgment reversed, and was turned out of court, saddled with the costs of a ten years' litigation, upon the sole ground (for no other question was considered by the court, although each judge who sat in the case delivered an elaborate opinion) that the declaration, which stated fully every fact necessary to sustain his claim, was, upon critical examination, found to be in its form a declaration on the case instead of a declaration in trespass-which last was held to be the action that, upon the facts set forth in the declaration, ought to have been brought.

It is true that no party will again suffer for precisely the same cause for which the plaintiff came to grief in Taylor v. Rainbow, for, although the decision had stood unquestioned for forty years and upwards, the revisors of the Code of 1849, in order, as they said, "to prevent the reversal of a judgment in future for this cause," proposed the adoption of a provision that "in any case in which an action of trespass will lie, there may be maintained an action of trespass on the case." This provision was made part of the Code of 1849, and will be found in the same language in the Code of 1887. It will be observed that it does not touch the principle on which the case of Taylor v. Rainbow was decided, so that it is as much the law now as it was then that if the plaintiff has "mistaken his action," the court will be (as the judges said. they then were) "constrained," however "great the hardship" may be, to reverse any judgment that may have been rendered in his favor. It may be further observed that the statute leaves the plaintiff to his fate, if his counsel should suppose an action of trespass to be the proper one; and wishing to adhere closely to the rules of the common law, which he has been taught to believe are "the perfection of reason,”

should sue in trespass, instead of availing himself of the statutory permission to sue in case, and (as is by no means impossible, for the distinctions are very nice) the court should be of the opinion that under the rules of the common law, properly understood, an action of trespass on the case, instead of an an action of trespass, ought to have been brought. Not only is a party under our present system of pleading and practice in danger of losing his case, although a good one, in the manner hereinbefore indicated, but he is also in danger of losing it if his counsel should make the mistake of supposing the remedy to be at law, when it is in equity only, or vice-versa.

In an address delivered by him before the Bar Association of the State of New York, in November, 1878, Mr. Justice Miller, of the Supreme Court of the United States, made the following statement, viz.: "A very distinguished friend of mine, a former Associate of the Bench of the Supreme Court [Mr. Justice Davis, who had, a short time before the address was delivered, resigned his seat on the Bench to become a member of the Senate of the United States, was doubtless the gentleman referred to by Mr. Justice Miller] told me this story: His father died when he was very young, and left him some twenty thousand dollars in personal property, which the executors of the will sold; and they used the money. When he became of age he sued the executors and their sureties in chancery, for an accounting, and for the amount due. The case came to the Court of Appeals of Maryland, which held, by a majority of one, that a suit in chancery could not be maintained, but his remedy was at law. He then brought his action at law, which also came into the Court of Appeals, whose membership had been changed, and which now held that the proper remedy was a suit in chancery for an accounting, and after that an action at law might be maintained on the bond."

A suitor in Virginia may, at any time, meet with the same fate. It is difficult to understand how any one can be disposed to adhere to forms of procedure under which such results are possible.

In 1848, a Code of Civil Procedure was adopted in New York, under the auspices of the Honorable David Dudley Field, who justly deserves to be regarded as the Tribonian of the present age. This Code, notwithstanding the opposition it encountered,-all valuable reforms encounter opposition-has, as has been truly said of it, "by the force of its example made its way around the world.” It was (as I learn from a table of dates cut from a New York newspaper) adopted, in all of its material features, in Missouri in 1849; in California in 1851; in

Kentucky in 1851; in Ohio in 1853; in the four provinces of India between 1853 and 1856; in Iowa in 1855; in Wisconsin in 1856; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1862; in Idaho in 1864; in Montana in 1864; in Minnesota in 1866; in Nebraska in 1866; in Arizona in 1866; in Arkansas in 1868; in North Carolina in 1868; in Wyoming in 1869; in South Carolina in 1870; in Utah in 1870; in Connecticut in 1879; in Indiana in 1881. It has been adopted in Georgia and probably in other States. It was adopted in England and Ireland by the Judicature Act of 1873, and since the passage of that act it has been adopted in many of the British Colonies. It has been adopted in the Consular Courts of Japan, of Shanghai, of Hong Kong and Singapore, between 1870 and 1874.

There is no instance in which, after its adoption, there has been a return to the former system.

Under these Codes of Procedure, the distinction between actions at law and suits in equity, and the forms of all such actions theretofore existing, have been abolished; and there has been substituted for them but one form of action for the enforcement and protection of private rights, and the redress of private wrongs,-the same being denominated a Civil Action. Relief is granted according to the principles of law and equity-legal and equitable relief being granted in the same action. All the pleading that is necessary is for the plaintiff to state his case in his complaint, in ordinary language, without repetitions; and for the defendant, in his answer, to state his defence in like manner. If the facts stated are such as call for equitable relief, it will be granted by the court as if it were sitting as a Court of Equity. If no equitable relief is sought, the court will proceed as if it were sitting as a Court of Law. When the English Judicature Act was under discussion, it was objected to it that there was grave danger that the result of combining legal and equitable rights and remedies in the same action would be to displace and supplant, in the administration of justice, equitable principles and doctrines by the more arbitrary rules of law. My own opinion is that there is no sufficient reason to apprehend that result in Virginia-the same judge having, under our system, for many years acted both as a chancellor and as a common law judge, there seems to me to be no greater reason to apprehend that our judges will be more disposed to give undue prominence to legal rules, when the questions are submitted to them in a single action, than they are now when called upon as chancellors to prevent or correct proceedings which the rules of the common law require to be taken by themselves on the law side