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REPORT

OF

SPECIAL COMMITTEE ON LAW REFORM.

NOTE. This presents the report of the Special Committee on Law Reform, as amended and adopted by the association August 3, 1893, and contains the provisions which the association directed to be presented to the State Legislature for adoption as laws, through a special committee of the association, consisting of Bev. B. Munford, S. S. P. Patteson, and R. L. Parrish, appointed by the president under the following resolution, as printed on page 62, ante, viz.:

Resolved, That the bills recommended by the Special Committee on Law Reform, as amended, be approved, and that the president of the association appoint a committee of three to present to and urge upon the General Assembly of Virginia the enactment into laws of the bills proposed in said report, but with power in said committee to make such changes in the phraseology of said bills as may be deemed expedient, provided the substance of the same is preserved.

To the Virginia State Bar Association :

We propose to amend section 3246 of the Code as follows:

I.

A BILL to amend and re-enact section 3246 of the Code of

Virginia.

Be it enacted by the Senate and House of Delegates of Virginia, That section 3246 of the Code of Virginia be and the same is hereby amended and re-enacted so as to read as follows:

Section 3246. When action not to abate for want of form.-No action shall abate for want of form where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the case, and in any action for the recovery of money due on contract, express or implied, it shall be sufficient for the

declaration to describe plainly and with reasonable certainty the cause of action relied on, or if the contract be in writing, it shall bc sufficient to file the same, or a copy thereof, with the declaration. The common counts, with a bill of particulars, may in any such case be made a part of the declaration. And no demurrer to such declaration shall be sustained because of the form of the action. In such case the writ may describe the action simply as

an action on a'contract.

NOTE. The amendatory part is in italics. The effect of this amendment will be to make one personal action on contract, or the implied assumpsit, sufficient where three exist now. Thus in the action of assumpsit all the relief may be had on any cause of action as to which the pleader would now have to elect between assumpsit, debt and covenant. In this we are following the spirit of reform which led the Legislature to make one form of action for trespass and case, the advantage of which has been too obvious to need comment. A simplification, too, of the declaration as provided by the proposed amendment seems to us to secure all the advantages claimed for the bill of complaint provided by the code of procedure, while concise. ness and brevity are perhaps better assured.

II.

A BILL to amend and re-enact section 3271 of the Code of

Virginia.

Be it enacted by the Senate and House of Delegates of Virginia, That section 3271 of the Code of Virginia be and the same is hereby amended and re-enacted so as to read as follows:

Section 3271. Form of demurrer or joinder in demurrer. The form of demurrer or joinder in demurrer may be as follows: "The defendant [or plaintiff] says that the declaration [or other pleading] is not [or is] sufficient in law. All demurrers shall be in writing, and shall state specifically the grounds of demurrer relied on. And no grounds shall be considered other than those so stated, but either party may amend his demurrer by stating additional grounds, or otherwise, at any time before the trial."

NOTE. The changes here made are in italics. The object of this amendment is to accomplish for a defence on grounds of law what the amendment proposed to section 3269 is expected to do for defences upon the facts. No idea of what the real objection in law is, is conveyed by the word "demurrer." We think that the defendant or the plaintiff, as the case may be, should be compelled to state his real defence in law.

III.

A BILL to repeal section 3267 of the Code of Virginia.

Be it enacted by the Senate and House of Delegates of Virginia, That section 3267 of the Code of Virginia be and the same is hereby repealed.

NOTE. We cannot understand what possible difference it can make to the investigation of truth whether a traverse concludes to the country or with a verification. But such requirements do raise technical difficulties and ought to be abolished.

IV.

A BILL to amend and re-enact section 3286 of the Code of

Virginia.

Be it enacted, That section 3286 of the Code of Virginia be and the same is hereby amended and re-enacted so as to read as follows:

Sec. 3286. When in any action on contract for the payment of money no plea in bar to be received, or inquiry of damages made, unless defendant file with plea affidavit denying plaintiff's claim, but judgment given therefor.

In any action on a contract, express or implied, for the payment of money (except where the process to answer the action has been served by publication), if the plaintiff, file with his declaration an affidavit made by himself or his agent, stating therein, to the best of affiant's belief, the amount of the plaintiff's claim, that such amount is justly due, and the time from which the plaintiff claims interest, no plea in bar shall be received in the case, either at rules or in court, unless the defendant file with his plea the affidavit of himself, or his agent, that the plaintiff is not entitled, as the affiant verily believes, to recover anything from the defendant on such claim, or stating a sum certain less than that set forth in the affidavit filed by the plaintiff, which, as the affiant verily believes, is all that the plaintiff is entitled to recover from defendant on such claim.

If such plea and affidavit be not filed by the defendant, there shall be no inquiry of damages, but judgment shall be for the plaintiff for the amount claimed in the affidavit filed with his declaration.

If such plea and affidavit be filed, and the affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, and the case be tried as to the residue.

V.

A BILL to amend and re-enact section 3272 of the Code of

Virginia.

Be it enacted by the Senate and House of Delegates of Virginia, That section 3272 of the Code of Virginia be and the same is hereby amended and re-enacted so as to read as follows:

Section 3272. What defects not to be regarded on demurrer.— On a demurrer (unless it be to a plea in abatement) the court shall

not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence that judgment according to law and the very right of the cause cannot be given.

NOTE. The amendment consists in omitting the residue of the section, which is rendered wholly useless by the amendment already proposed.

VI.

A BILL to simplify the mode of procedure in actions at law and in suits in equity.

Be it enacted by the Senate and House of Delegates of Virginia:

1. That in every proceeding at law the principles of common law and equity shall be alike applicable, and the same relief shall be administered, so far as the nature of the proceeding will admit, but wherever the principles of law and equity conflict, the principles of equity shall prevail.

2. That whenever a suit is brought in equity, which should properly have been brought at law, the suit shall not, for that reason, be dismissed, but the court shall cause a jury to be empanelled frame an issue to be tried by them and give to their verdict the same force and effect as if the same had been brought at law. And whenever it shall appear to the court that the proper relief or the whole relief demanded and to which the party is entitled cannot be given in an action at law, according to the principles of equity applicable to the case, the suit shall not for that reason be dismissed, but leave shall be given to make such amendments as may be necessary to afford proper relief, and the court, without the aid of a jury, shall administer such relief as the parties ought to be entitled to if the same had been brought in equity.

3. Any case which may be at any time in the Chancery or Circuit Court of Richmond city, and subject to the provisions of section I or section 2 of this act, shall be transferred from the Circuit Court of said city to the Chancery Court, or from the Chancery Court of said city to the Circuit Court, as the case may be.

4. This statute shall be liberally construed, to the intent that justice be not delayed or denied by reason of the form of the proceeding.

NOTE. The committee regard this statute of great importance as going far to supply two of the just demands of reform, that principles of equity shall be fully administered in all cases, whether their form be at law or in chancery, and that neither loss nor delay shall result from a mistake in the application to the proper forum. We can see no good reason for dismissing a good cause merely because the sufferer applied for relief at the

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