it passed the lower House by a very large majority, but was defeated in the Senate only because, in my opinion, it could not get to a vote. The Court of Appeals decided in the Hortenstein case that, as the law stands at present, the rule is that negligence is a conclusion of law from facts properly pleaded. I want to put the law in this shape, that negligence shall be a conclusion of law from facts properly and legitimately proved to the court. As I understand the present English practise, they have no declaration of any kind; they sue out a writ, endorse on the back of the writ what it is, and you go to trial on the facts as proved by the witnesses. That is the law in Great Britain and all of its dependencies; it has been the law there since 1873; they have no such thing as a demurrer to a pleading as a pleading. There is such a thing as what we call a demurrer to whether or not the facts as proven entitle a party to a hearing, or whether he has got a case in law on his facts and not his pleadings. Now in the Hortenstein case and I criticize the Court of Appeals as I think I have a right to do as a citizen and a licensed lawyer; I do not mean to be guilty of any impropriety or any unkindness, but I am only expressing my view of what should be the law-to my mind it is lacking in a sense of justice for a man to have the right to bring a motion on a contract for money and try it not on the form of his pleadings, but on the evidence at the trial, and yet when he gets injured or killed he must set out his grounds of action in particular language which has come down to us from the time of the Tudor kings of England. There is no particular virtue about that language; it has been abandoned by the English people, and our law ought to put a litigant in such a position that when he comes into court it does not make any difference what his vernacular is, or whether he has drawn his pleadings one way or the other; he is going to have his trial on the merits of his case, according to the testimony he can produce before the court. This amendment to the law will accomplish that result. Now the statute in regard to motions upon contract has been on the books so long that I do not think you will find a single member of the Legislature who is willing to take it off.

I want to read you what lawyers ought to do, as stated by a

man who is a lawyer and who will probably be our next President. I refer to Mr. Woodrow Wilson. Speaking before the New Jersey Bar Association on June 16th of this year at Atlantic City, he said:

"It is true that the legal profession, as a profession, does not enjoy the confidence of the people. I am surprised, and I must say disappointed, that the legal profession of this country has not undergone the same change and liberalizing that has characterized its progress in other countries.

"The community no longer regards you as legal guides. You have withdrawn from statesmanship and lowered the profession to a strictly business basis.

"The ambush of technicalities you have drawn around the corporations makes it necessary to enact drastic legislation to tear away the shell and get at the heart.

"If you want to restore your profession to the confidence of the people you can do it in a single year by following the method of simplicity. The change can be wrought, but if it is wrought without your support and assistance, it will be wrought to your discredit.

"The United States is in a very critical mood in regard to its courts. You must regard the constitution on the same level as statutes, because you can't read anything into the constitution that was not meant to be read there.

"I take it the Constitution of the United States is at any particular time what the people who live under it want it to be. From age to age it has worn the aspect of youth. It is shot through and through with the virility of the common law. Only one kind of men should be judges-men who have the elasticity of youth. The energy of the American must be relieved by the courts and if it is not relieved it will break through the sacred fibre. I am not suggesting sinister possibilities, but speak of the future in the hope that the future may not break with the past. Are you or are you not

going to be instruments in that great irresistible process by which the human race is struggling forward to higher institutional levels?"

Now this form in which the reform of procedure has started in Virginia, by motion, can be carried on more easily than reform can be obtained in any other way. It is the line of least resistance. If we wait until we can get our Association to agree on every possible change that would be beneficial to the law and litigants in Virginia, by the calculation of probabilities we will wait a thousand years. It will be impossible ever to do it except by piece-meal. I therefore hope that the Association will adopt this resolution so that the General Assembly can broaden out the present methods of bringing suits for torts in Virginia, and therefore get rid of what I dislike very much, the Hortenstein doctrine.

Mr. John T. Harris, Jr.: Do I understand that under the proposed resolution, a request for an amendment to Section 3211, you can state the cause of action in torts differently from the way you state it in a declaration?

Mr. Patteson: Yes, sir.

Mr. Harris: How can you state it differently and give the defendants notice?

Mr. Patteson: When an accident occurs on a railroad—

Mr. Harris: I am not talking about railroads; I am talking about a man injured by a threshing machine, say.

Mr. Patteson: The man that was running it knows that he was hurt. If he brings a suit, he can ask for a bill of particulars, and he will get just as much notice that way as he will the other way. There is no possible reason in my opinion why we should use the language of Tudor England, when the mother country has abandoned it since 1873.

Judge Duke: Mr. President, the idea is that I can write a declaration on a sheet of note-paper, if I am hurt in a threshing machine, and say:

"Sir: Take notice that on the 15th day of June, your threshing machine in the county of Rockingham injured me by cutting off my right hand in the cogs, I being in no fault therein, and I ask damages for one thousand dollars."

In other words, this is a great movement to cut out of our practise a great many pleadings, as they have done in England. You (Mr. Patteson) are wrong in saying that they do not file declarations; they do in some cases, but the declaration can be written on a sheet of note-paper. I am heartily in favor of the resolution and hope that it will be adopted.

Mr. Montague: Mr. President, I endorse that resolution. In 1908 I offered a bill in the Legislature along this line. Mr. Page and I served on the same committee; I believe he opposed it. However that may be, the bill was reported favorably, and I believe would have passed at that session if it could have been reached, but you remember the rule about ten votes preventing the taking up of a bill at the close of the session. Mr. Stephenson introduced a bill at the last session, and it passed the House by a large majority. I do not claim to be skilled in pleading, though I have not had much trouble in stating my cases. I have been impressed for a good many years, however, that if we want to make any impression of this character in Virginia, we must do it, as Mr. Patteson says, by piece-meal; and it occurred to me that under this amendment there was a chance to bring up the proposition in a practical manner and along the line of least resistance. I have been criticized by some people for having supported this bill in 1908; I have no apology to make to anybody at any time or place for my support of this proposition; and I now take pleasure in endorsing this resolution of Mr. Patteson's.

Mr. Page: Mr. President, I would like to ask my friend, Judge Duke, if he does not think that the statement he made just now is a good declaration for a man injured in a threshing machine.

Judge Duke: I am unable to answer that question until the Supreme Court of Appeals has passed on it.

Mr. Page: Mr. President, I want to say that Judge Duke's declaration on a sheet of note-paper is a good declaration, the Hortenstein case or any other case notwithstanding. Remember what you said, "Dear Judge, John Smith injured me on the 19th day of June in his threshing machine without my fault."

Judge Duke: The Court of Appeals would say, as in the Hortenstein case, that I did not set out the negligence of the defendant.

Mr. Harris: In the Wood case, the Court of Appeals intimated that it was sufficient if the declaration said that the plaintiff was without fault.

Judge Duke: I would like to ask my friend if he is willing to submit a railroad case on that.

Mr. Page: Mr. President, I want to call attention to this factthat when this matter was up, they all swore by the Hortenstein case as being dreadful.

Mr. Patteson: I did not.

Mr. Page: I never was in any meeting where the question of pleading came up that somebody didn't say "Hortenstein case." I was not in the Hortenstein case, but I stand here to say that Judge Staples said, I think it was probably in the Whittington

case

Mr. Patteson: That was overruled by the Hortenstein case directly by name.