Mr. Page: Judge Staples said in that case that the object of the declaration was to inform the defendant of the nature of the action against him. I sat at the table and wrote that down when they came in there with their amendment; two great lawyers were there, one at each end of the table, and they looked at each other and looked at me. I said, "Are you willing to put in there 'provided your declaration shall inform the defendant of the nature of the case against him'; and one said after a pause of a few minutes, "No, I won't take it," and the other said, "I will." Mr. Montague: Mr. President; I want to ask Mr. Page if he does not think that the same rule would apply if this section is enlarged to embrace torts, as now applies when the Court of Appeals has said that a demurrer will lie to a motion not under contract; in other words, you must state a case. Everybody knows you must state a case, and I think you can leave those things to the Court of Appeals. Mr. Sipe: Mr. President, the question has been asked, Why should there by any discrimination between a matter of tort and a matter of contract in proceeding by motion. I think it is very plain. We must, under Section 3211, set out what we expect to prove, to-wit, the contract. We have got to do that. In other words, under all legal procedure I suppose, the prime object is that we shall allege a cause of action, and we can reasonably do that under Section 3211 in a contract case, because we allege the contract. But a different principle comes in when we come to torts. You not only have to set out the facts, but to set out the law as well. You are to set out the duty, the legal obligation, and that you can only do, as I understand it, in the form in which declarations in tort are now drawn, putting into the declaration not only the facts, but the duty which arises from those facts. Now if you undertake to do that under some amended form, you have got a declaration in tort, just what you have got now. Mr. Lewis H. Machen, of Alexandria: Mr. President, I would like to ask Mr. Sipe whether he, or anyone else, can suggest any reason why a man who has a claim in tort should be compelled to inform the court and the attorneys on the other side what the law in that case is? In other words, is not the law something that can very well remain in the law books, something which the courts are presumed to know and which the lawyers defending tort cases generally know better than anybody else? Mr. Harris: Mr. President, I would like to ask the gentleman a question. Is it not a fact that a great many cases of tort arise without precedent? Mr. Machen: I do not believe very many do, and I think in case they do, the question of law probably cannot be stated by the attorney bringing the action; that is to say, it can very well be left to the court when the trial comes. on? Mr. Harris: How will the defendant know what duty is relied Mr. Machen: I cannot conceive of any necessity of stating the law applicable to a case in tort that would not as well be demanded in an indictment, or in a case brought upon contract. I have heard numbers of objections made to this procedure. So far as I know that objection has never been made before; but the chief objection has always been that the defendant was not upon proper notice. As long as the plaintiff has the right to state his case in separate counts upon as many different theories may choose as he Mr. Harris: That are not inconsistent. Mr. Machen: Not inconsistent, perhaps, although I think they generally are inconsistent in fact. Mr. Harris: Yes, sir, that is the difficulty of the case. Mr. Machen: I say that as long as that is permissible, I do not see how they have any more definite information in regard to 1 the case to be presented by the plaintiff than if there were motions filed and nothing said about the causes of the actions that were to be brought. Mr. Page: Mr. President, may I try to answer my distinguished friend from Alexandria, and say that it seems to me, as the matter now is, the benefit is that the litigant states his case and the court says, "You have no case", when the law does not justify the action. I come and say, "I demur," and the court says, "He has no case." Now what is the reason for putting me to the expense of trying a case, when at the end the court sets the verdict aside or rules out the evidence, in order that I may make the statement that I was threshing wheat and you injured me, and then when I go into court it is found that the reason I was injured was that when you were at the Bar Association I was threshing wheat at your place and got my hand in the cog-wheel? As the law now is, before I can recover, I have got to say that you are responsible because you did not manage the machine right, and the court has to say that unless I do that, I have no case. The court does that on demurrer now. Upon a division, Mr. Patteson's motion failed of adoption, ayes 6, noes 9. Mr. Whitehead's resolution giving the Commonwealth the right to two peremptory challenges in criminal cases was adopted. On motion, the Association then took a recess until 8:30 o'clock P. M. EVENING SESSION. HOT SPRINGS, VIRGINIA, The Association was called to order by the President at 8:30 o'clock P. M. Judge S. C. Graham of Tazewell: Mr. President, I have a little word to say. I received a message from Mr. Bullitt this evening, and he asks me to thank the Association for conferring the honor upon him of making him our next President. I wish to say this and I would like to have it recorded—that he is going to be our President, and he is a man, every inch of him, and I do want our people to be good to him and to stay with him as a distinguished mountaineer-highlander. The President: I hope that the distinguished speaker does not mean to reflect on the predecessors of Mr. Bullitt, intimating that they are not men? Judge Graham: No, sir; because if I did I would reflect on myself. The President: Gentlemen, the next on the program is a paper by Mr. Walter H. Taylor, of Norfolk, entitled, "The Abolition of Jury Trials in Civil Cases." I desire to say that the papers that have heretofore been read before this body since its organization have all been of a very high order. Whenever our Executive Committee selects a gentleman who has already attained distinction at the bar to read a paper, it means that they believe that that gentleman will reflect credit upon this organization. Whenever they select one of the younger members of the bar to do that service, it means that he is on the road to distinction if he has not already attained distinction. They recognized that in my friend, Mr. Walter H. Taylor, of Norfolk, and it affords me very great pleasure to present him to you this evening. Mr. Taylor then read his address. (See Appendix.) The President: On behalf of the Association I extend our thanks for the very instructive and able paper we have just heard. The next business in order is the report of the Committee on Memorials. Mr. Samuel Griffin, of Bedford: Mr. President, the report of the Executive Committee has already conveyed to the Association the sad intelligence that since its last meeting eight of our members have departed this life. Their names and the dates of their death are given in said report. The list contains the names of men of ability and prominence, whose deaths are sincerely lamented. Under the practise of the Association suitable memorials will be prepared and with the consent of the Association published with the proceedings of this meeting. The Committee recommends that such authority be conferred by a resolution of this body. On motion the report was received and adopted and the Secretary directed to publish the memorials in the proceedings of this meeting. Judge Duke: Mr. President, at the request of Mr. Thomas W. Shelton, of Norfolk, I introduce the following resolution: WHEREAS, The Virginia State Bar Association is profoundly impressed with the importance of a uniform system |