The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-06-30
THE INDIANA LAWYERS
PAPERS READ BEFORE THE STATE
BAR ASSOCIATION.
w. ID. HornbIowcr, of New York, Here
Various Reforms Discussed-New
Omcers-A banquet at Night.

One hundred and fifty members OF the
State Bar Association of Indiana gathered
yesterday morning in the Supreme Court
room at the Statehouse for the second an
nual meeting of the association. John G..
Williams, vice president of the association,
took charge of the meeting in absence of the
president, General Harrison He introduced
William B. Hornblower. one of the promi-
nent lawyers of New York, who delivered
the annual address. Mr.. Hornblowers sub
ject was Fifty Years of Reformed Pro-
cedure." He said in part:
Half a century ago there swept over
Europe and America a wave of radicalism:
In Prussia and in the other kingdoms of
Germany, as well as in Austria, 1t assumed
gigantic proportions and threatened to over
throw the reigning dynaSties and compelled
concessions in the shape of constitutional
and parliamentary government. In Poland
and in Hungary it assumed form OF
revolution against the alien oppressor. In
France it swept away the monarchy of
Louis Philippe ana left in its place the
short-lived second republic. In England 1t
produced q elimination of the Chartist agi-
tation, followed later on by substantial
changes in the direction of popular govern
ment.
In this country, finding no deep-seated
hereditary abuses to BLOCK its path and
rouse it's fury, no monarchy and no arts
tocracy and no feudal privileges, this wave
of radicalism subsidized into a broad. quiet,
but powerful wave of so-called democratic
reform 1t spent its force on our time-hon-
ored system of jurisprudence as the only
visible direct Inheritance from monarchlcal
judiciary must be made directly responsible
to the people, and that the whole domain
of Jurisprudence must be popularized
Your own State Constitution of 1881, fol-
lowing shortly after our New York Consti-
tuition of 1876. likewise provided for an cleo
tive judiciary and for short terms of six
n a lGn
lature to provide for commissioners TO re-
wise, simplify and abridge the. rules, prac-
tice, pleadings and forms OF the courts OF
Justice 1t went step beyond the New
York Constitution, in directing the commas
soners to provide for abolshing the dis,
tinct forms of action at law now in use; and
that Justice shall be administered in uni
form mode of pleading without distinction
between law and equity 1t further pro-
vided that the legislature may, also, make
it the duty of said commissioners to reduce
into a systematic code the general statute
law of the State
LIFE TERMS IN NEW YORK.
"In 1869 the short-term idea was aban-
doned in New York, and an amended jul
dietary article was adopted by the people OF
the State by which the term of office of the
judges of the Court of Appeals and of the
justices of the Supreme Court was extended
to fourteen years, or until the incumbent
shouldEeach the age of seventy The erect
of this has been, far as our Court of APP
peals is concerned, practically to give life
tenure subject to the age limitation, since
the practice of re-electing the judges has
been uniformly followed
"Of the seven. judges elected to our Court
of Appeals in 1869, all but two died before
the expiration Of their fourteen-year term.
The other two-one Democrat, Judge
Rapallo the other a Republican, Judge An
dreWs-were renominated by both of the
nOlitip9l nartipS and both re-
elected Judge Rapallo died while still on
the bench, and Judge Andrews has just re-
tired at the age of seventy, after twenty
seven years of continuous service.
Great things were expected by the cham
pions of reformed procedure at the time
when the code was adopted. Volumes or
abuse and ridicule were heaped upon the
old practice, and a legal millennium was
anticipated when the old practice was done
away with and the reformed procedure in
troduced Especially in the domain Of plead
ing was 1t anticipa ed that enormous gains
would be made I'M the interests of substan-
tal justice. uAll forms Of action were to be
abolished. There was to be but form
of action, and the practice of the law was,
in fact. to be so sinplihed that the ordi-
nary, unlearned layman could practice law
on his own account without being obliged
to employ skilled attorney
what has been in fact accomplished
practically in the cause of substantial JUS
tice by these fifty years OF reformed pro-
cedure? Must we not frankly confess that
very little has been accomplished? / think
have been absurdly below the expectations.
Indeed, it may be fairly questioned whether
we are not worse off than we were before
whether our statutory system of procedure
has not produced a more technical, rather
than a more liberal, administration of rem
edial justice.
AN ELEPHANTINE CODE.
IT cannot of course, speak with any de-
gree of certainty as to your own State. but
1 may venture to ask whether, after all,
ofPt I,
State Illinois, which has adhered, If I am
not mistaken. to old forms and procedure,
modified to suit modern ideas. can speak
with great certainty with regard to our own
State Of New York, side by side as 1t is
with the Goddess State of New Jersey and
the Goddess State Of Connecticut, and re-
greet to say that believe our practice is to-
day more technical than that OF either of
our neighboring States. Our code of proceed
ure has grown TO elephantine proportions,
with minute details regulating every step of
litigation, and in it's latest development has
become so cumbersome in its microscopic
minutiae of details that a movement Nhas
been set on foot by our State Bar Assotia-
ton and our New York City Bar Associa-
tion for its entire abolition, and for the sub
Stitution of a short practice act, like that
of Connecticut, regulating matters of detail
to rules of court which will be less rigid
less minute and less imperative, so that the
courts will be left more free to do substan-
tial justice. I believe the general consen-
to-day favors this proposition of cutting
out, root and branch, this complicated and
technical statutory procedure.
I'm fact, it may be- stated as a result or
experience in the domain of Jurisprudence
generally. that legislation breeds litigation.
Statutory law calls at once for construction
and interpreta ton, and when statutory law
is applied in the technical domain OF prac-
tice it invites and encourages technical
tactics from beginning to end of a law
suit
Leaving the general subject of practice
and coming to the particular subject Of
pleadings, which was the great noint of at
tack of the reformers, we may ask what has
been accomplished on this branch of the
law. The Shibboleth among the reformers
was forms of action must be abolished.
This was their formula for regenerating
procedure, their panacea for all the ills and
ailments of the common law practice
1.-The inherent defect in the theory of the
reformers was that they attempted to ig
more the distinctions which were ingrained
in our substantive law. 1t was all very we'll
to enact that there should be but one form
of actior@ but the fundamental distinctions
between law and equity, contract and tort,
trespass and trespass on the case still re-
manned. These distinctions are interviewer
into the very warp and wool of our COM
mon law system of Jurisprudence They af-
feet questions of evidence, burden of proof,
damages and grounds of recovery.
Case after case goes to our court of last
resorts where the sole question is, what
was the nature of the plaintiffs cause of
action. as set up in the complaint? Thus
the defendant is cOmDelled to take the