trial court, or the cause reversed on appeal. The issues of fact should be decided once for all while the facts are comparatively fresh in the memory of the witnesses, and while the best opportuninty exists for obtaining all evidence relevant to the issues. The jury should dispose of all questions of fact, get them entered on the record by special findings, and then let the case go up on that record. That was the theory upon which the English system of trial of jury proceeded. The issues were made up at Westminster, and they were sent down to be tried by a jury at the Assizes. Under that system, the specified issues were on the record, and the verdict of the jury finally disposed of those issues. Decisions on questions of law could be reserved for subsequent consideration by the trial judge, or by the appellate court. This practice now exists in New Hampshire, New York, New Jersey, Pennsylvania and Kansas, and in other States. The case of Williams vs. Delaware, etc. Railroad Co., reported in 155 N. Y. 158, was tried seven times, and was in the courts for twenty years; and in the Hillman case, which was last reported in 188 U. S. 208, there was judgment of reversal twenty-three years after the suit commenced. A bill has passed the lower House of Congress, regulating the procedure in the United States Court in the aspect under consideration, and I understand that the bill is now in the hands of a committee of the Senate. The bill, in so far as affecting the present discussion, is as follows: "The trial judge may, in any case, submit to the jury the issues of fact arising upon the pleadings, reserving any question of law arising in the case for subsequent argument and decision, and he or any court to which the case shall thereafter be taken on writ of error, shall have the power to direct judgment to be entered, either upon the verdict or upon the point reserved, if conclusive, as its judgment upon such point reserved may require." If this rule should be adopted, then on motion for a new trial, or on appeal, whenever the error complained of is deficiency of proof, or of some matter capable of proof by record or other incontrovertible evidence, or defective certification, or failure to lay the proper foundation for evidence, which can, without involving substantial controversy of facts, be shown to be competent, the courts should be authorized to take additional evidence for the purpose of sustaining the judgment. In a recently reported case, judgment was reversed because the law of another State was proved by the introduction of what purported to be, and what every lawyer of that State knew was, the code of such other State, although the proof was technically deficient in that the code did not purport to show by what authority it was published. If the trial court, or the court of appeals, had had the power to take evidence on this point, which would not have provoked any real controversy, the point probably would not have been raised. It is true that the constitutional right of trial by jury is guaranteed in certain causes, but it is believed that the practice here outlined would not constitute an infringement of jury trial. It would prevent a new trial where the only purpose of such trial is to take proof of a matter on which there could be only one finding, and that finding would support the verdict. Another cause of delay is the sharp distinction now recognized between legal and equitable remedies. The procedure should be such that legal and equitable relief may be had in the same cause. Equitable defenses and cross-demands should be allowed in suits at law, without the delay and expense of a separate proceeding. I am also clearly of the opinion that a much larger discretion should be allowed the judges during trials in common law courts. The present system [now modified by the new Supreme Court rules], makes every appellate hearing a search for error, rather than a search for justice. All statutory rules of procedure should be repealed, and rules of court promulgated for all courts of record by the Supreme Court, and there should be vested in judges both nisi prius and appellate, a larger discretion, so that technicalities may be disregarded, the rules of procedure regulated, and the rules of evidence reformed. In England there is a certain prestige attending the office of a judge, and proper deference is there paid to that office. While inherited social conditions are, to a certain extent, responsible for the English sentiment, which is impossible here, we can secure a larger respect for and esteem of judges, by inaugurating a system of judicial independence, which will secure the prompt and efficient administration of justice; and a wide judicial discretion is absolutely necessary to obtain such results. As said by Hon. Frederick N. Judson, in a paper a few years ago at a meeting of the American Bar Association: "The realization of this reform in our procedure, which is so essential to the due administration of justice, is not a Utopian dream. This reform is dependent at every stage upon the discretion of an enlightened and independent judiciary. Whether we substitute elastic court rules for a rigid statutory procedure, or appeal to the courts to apply their discretion in liberalizing our archaic rules of evidence, or if we make the trial judge more than a mere umpire in the game of litigation, or if we seek to reduce the overwhelming mass of printed reports to those only useful as precedents, or even if we seek to reduce the intolerable length of judicial opinions, or if, more than all, we seek to remove the ancient presumption of prejudice from error, and to make our appellate hearings more than mere quests for error— in each and every one of these methods of reform, we find as an indispensable factor the enlarged discretion of an independent judiciary. This much is certain, if we continue in the mistaken policy of distrusting and limiting the judicial power and of preventing as far as may be the exercise of judicial discretion, our efforts for effective reform in judicial procedure will be forever vain and impotent." We are living in a progressive era. America will no longer submit to ultra-conservatism in the administration of the law. Social and economic changes necessitate a change in the methods of administering justice. While constitutional rights are to be protected to their fullest extent, the interpretation of the laws and the administration of justice must be in accord with present thought and sentiment. "New times demand new measures and new men: The world advances, and in time outgrows I have no dread of what Is called for by the instinct of mankind; REPORT OF SPECIAL COMMITTEE ON VIOLATION OF ETHICS AND LAW BY ATTORNEYS. To the Alabama State Bar Association: The undersigned, Special Committee on Violation of Ethics and Law by Attorneys, respectfully beg leave to report that a meeting of this Committee was held in the City of Birmingham during the month of May, 1913, for the purpose of hearing complaints coming under its jurisdiction or authority,-notice of the time and place of the meeting having been published in the daily papers in advance, it being the desire of the Committee to give as much publicity to this meeting as possible, in order that any person having complaints to make might appear at that time. At this meeting complaints were made against two practicing attorneys whose names this Committee does not deem proper, for obvious reasons, at this time to disclose. The Committee, pursuant to its duty under Section 9, Article 8 of the By-Laws of this Association, has referred both cases to the Central Council, together with the evidence relating thereto, with the recommendation that such action be taken against the parties as the facts may seem to justify. Respectfully submitted, B. P. CRUM, Chairman. Committee. |