The age-herald., 1898-07-31
CHANGES NEEDED
 IN ALABAMA LAWS
The Report of Mr. Weak1ey Adopted By the Bar Association of this State at Its
 Recent Meeting.

- Two defendants sued together may in- terpose only such defenses, other than those called personal, which are possessed by all, and thus again the court must ad- minister only partial justice or perhaps no justice at all. We believe no good reason exists why a statute may not authorize the Interpretation of equitable defenses in law courts, nor why a power to do com plete justice the right may appear as between the various parties may not by legislation be vested in the circuit courts in respect of actions properly brought therein. To accomplish these desirable re- suits, we recommend the adoption of statute, reported herewith, entitled "An act to further regulate the practice in civil actions at law" section one of which provides for the Interpretation of equitable, as well as legal, defenses in actions at law and confers upon the law court full power and authority to mould it's judgment so as to do full and complete Justice be- tween the parties, when such equitable de- lenses are interposed and sustained. By section two of the act it is provided that judgments may be rendered for or against one more of several plaintiffs or for or against one or more of several defend- ants, and in such cases the verdict and judgment shall be as the right may appear among the several parties to the action.
 Section three provides that in actions at law such and so many verdicts and judg- ments, joint, separate and cross, as may be necessary to the adjustment or the Mary Donna Lee Howell. Ambrose Howell rights of the several parties, may be. rem dered.
 results in trials before jury of cases in volving long accounts, which are not suffi- cently complicated to justify resort to a court of equity has frequently caused law yers to express the conviction that pro- vision should be made for referees, to hear
 
 first instance.
 We find in the code of Mississippi, state which also preserves the chancery court, statute which authorizes referees in such cases, at the same time preserving the constitutional right Of trial by jury. In substance, it provides for a report by referees and authorizes exceptions to such report which exceptions may be tried by jury upon the demand of either party. The advantage of the act consists in the fact that upon the jury trial the report of the referees is made prima facie evidence of all the matters therein found and reported, and matters not excepted to are treated as true upon the trial.
 3. The supreme court of the state will always be a subject of much interest to the bar and the people. Most really ltigated cases find their way to that high tribunal for final determination and to the reports of its opinions, more than to any other books, the profession goes to learn the law. No matter how speedily causes may be heard and decided in the lower courts, there will be failure of justice if undue delay, for any cause, results in the deter imitation of appeals by the court of last resort. Every precaution must therefore be taken to keep the machinery of the court in working order with all it's compo- nent parts in place and to so regulate the transfer of cases to that court and the procedure therein that every cause sub have If there is any omission in our laws which tends to retard the prompt decision by the supreme court of all cases there submitted such omission should be supplied.
 Our attention has been called by one of the justices of the supreme court to the fact that while section 3S3S of the code pro- videS for the appointment of a special judge to decide a case wherein one justice is dis qualified and the remaining four are equally divided in opinion, no provision has been made to meet the case of equal division among four when a justice is absent, from sickness or other cause. To remedy this omissioh we submit a proposed amend ment of section 3S3S, which provides for the appointment of a special justice when for any reason only four justices can sit in a case and they are equally divided in opin- ion therein.
 Within the past few years provision has been made for the first time for special chancelors and circuit judges to hold terms of court which the regular incumbents colud not attend and in many states simi- lar provision Is made to supply the place of an absent judge of the supreme court. In this state no law authorizes the ap- pointment of a special judge to carry on the work of a regular justice who is dis abled by sickness, or other providential reason, from dscharging his official du- ties. When it is remembered that the con- tinued absence of a judge necessarily sus- pends action in one-fifth of the courts business, the importance to the public of supplying a substitute is apparent if the condition of the docket is such as to re- quire the services of five judges. Not to do so, is not only an injustice to litigants, but is a positive unkindness to the judge who may be absent on account of sickness contracted by incessant application to his public duties, to whom the knowledge that his inability to labor is delaying parties in the procurement of their legal rights is a constant source of mental suffering and whose recovery would no doubt be has, tened by the thought that another was filling his place and that suffering from his illness was confined to himself alone. We therefore submit a bill for special justice in suchc cases and if any consti- tutional objection exists thereto, we pro- pose another which we are convinced is perfectly valid and will meet the needs of the case, whereby a special commissioner may be appointed to report to the justices
 
 cases the court may assign to him, or to prepare written opinions therein, as the court may direct, which reports or opinions the court may adopt if a majoity concur therein. It is not proposed by these stat utes to make any deduction from the sala- ry of the regular justice. We adhere to the practice of requiring appeals to be taken to the supreme court in the name of all the parties against whom a judgment or decree is rendered, and when the appeal is taken by some of the parties in the name of all delay in the submission and a con- tinuance of the case result in order that a summons may issue from the supreme court preparatory to a severance in the assignment of errors. If the summons were issued, as it might be, by the clerk of the lower court, when he issues citations to the appellees, the whole trouble would be obviated. We submit bill to cover such cases.
 Our statutes are very liberal in allowing appeals to the supreme court. In chancery cases an appeal may be taken from de- crees upon a motion to dismiss for want of equity; also from decrees upon demur- tI