The age-herald., 1898-07-31

lowing report was made by the committee of which MT Samuel D. weakley is chair man. All the recommendations made in the report were discussed in open meet ing by the Bar association. and indorsed unanimously, and the committee was in- structed to use its best efforts to have the next legislature enact these recommenda- tions into statutes. The report is fol- lows:
 To the Alabama State Bar Association:
 The constitution and bylaws of this association charge the committee on judi cial administration and remedial procedure ''with the duty of the observation of the tion of information, the entering and ex Amining of projects for a change or re- form in the system, of recommending from time to time to the association such &C., tion as they deem expedient."
 The judicial system prevailing in Ala bama, consisting of separate courts of law and equity, is imbedded in the constitution of the state and hence is beyond the reach of legislative change although a large field for legislative action may be found in the reform and amendment of the prac- tice, both in the chancery and circuit courts. Some years ago, there was active agitation, as the reports of this as- sociation will show, for the abolition of the dual system and for the erection in its stead of a single tribunal for the ad- ministering of both legal and equitable rights, by the application of such reme- dies, legal or equitable, as the nature of the case might require and the movement under the lead of the late Chief Justice Stone found strong support among our ablest and most experienced lawyers, al though it must also be said that the pres ent system and particularly the system of pleading in sections at law were not with
 out their advocated and supporters, equally able and experienced The recog milton of the fact that the change could not be secured without a constitutional con yention or at least constitutional amend ment-both difficult to obtain-the conserva- tism of many lawyers, who preferred the ills we have to others they knew not of, the unwillingness of others to unlearn 0 system they had measurabIy mastered, or to undergo the labor necessary to acquaint themselves with another, and the known difficulty of introducing so radical de- parture from the methods of procedure to which the people have so long been ac- customed, even if opportunity were offered the people to express a choice through iCpi III COllVcnllOn dSSeDDleu UT by direct vote ,~up0n proposed amend ment have ati conspired, it would seem, to dampep-the ardor of those who would fol- loX~in the steps of most of the American >%states, headed by New York, whose code of Civil Procedure of 1S4S furnished the basis of England's judicature acts of 1873; at least the reports of the association for more recent years show less and less of discussion upon this subject. In 1892 a bill was reported here by the committee on t-1a nr1, ff- N,af.. Vol Troy, proposing an amendment to the con- stitution which would have completely re- vised Article 6, relating to the judicial department, but nothing ever came of it and in view of past experience with amend ments that have been submitted to the people, growing out of the difficulty of arousing sufficient interest to induce an affirmative vote upon the part of a ma jority of the electors who participate in the election, it is not believed that an amend ment revising the judicial system, even if it secured the necessary legislative sane ton, would stand much chance of adop- ton. Under these circumstances the ques- tion whether the double system of courts shall be maintained or whether the dis tinction between law and equity shall be abolished and justice be administered in one court, operating under a "code of procedure" must be referred to the de- cision of the next convention which shall be called to frame a new constitution for
 
 init to the people the question of conven- tion or no convention, the election would not be held until next year and if the re- suit should be in favor of convention that body would probably not assemble un- til the fall of 1S99 after our next annual meeting, to which can be referred a fur ther consideration of this matter, in view of an event-the calling of a constitutional convention-that may or may not trans pire between now and that time.
 hn 7ar,itf xvin fharafnra tppf it- self with reporting to the association the result of its observation of the working of our judicial system, with indicating some of the defects in our laws which can be remedied without infringing the organic law and with presenting, in accordance with the bylaws, drafts of bills which are designed to cure the defects pointed out
 Our observation and experience have taught us that while much has been done in this state to improve its systems of remedial procedure, very much has been left undone, and we are administering jus tice under many antiquated rules which seem to have been framed to induce de- lay and postponement of the trial of causes. Fictions and technicalities, having no sub- stantial merit, are preserved and in many instances we have entirely failed to remedy defects which are known to every lawyer, some of which have been called to the at- tention of this association at previous meet iDgs In this report we shall present no elaborate scheme of reform, but will point out wherein Improvements can be made by very short and easily understood statutes. In the main, we propose to present our suggestions in separate statutes, in the framing of which we have had in mind the abolition of Actions, the increase in the elasticity and effectiveness of remedies, the curtailing of costs and especially the prevention of useless and harmful delay.
 Without further preliminary observa- tions, we proceed to state the reasons upon which our recommendations are based and to present the statutes which We report for approval
 l. One of our chief arguments against our dual system has been that it requires a defendant, sued at law, to report to a court of equity to avail himself of an equi- table defense, whereby the anomaly is pre- scented of compelling one court to render a Judgment which another court, created by and exercising Jurisdiction under the same sovereign power, is required to en- join. It would be difficult for a non-pro- fessional mind to understand why this should be so and undoubtedly this condition