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ing measures as regards their form of expression, constitutionality and relation to existing statutes.

We feel that under existing circumstances, it is more important to direct the attention of the legislature to the necessity of a painstaking preparation of such statutes as they decide to pass, both with regard to phraseology and legal effect, than to the recommendation of any particular enactments. If the Judiciary Committees of the houses of legislature were empowered and required to employ competent counsel to be paid by the state, who would be largely responsible for the final draft of bills, we feel that much of the present crudity in the Statutes and Code of Washington would be avoided in the future.



SEATTLE, July 21, 1897. MR. BALLINGER In connection with this report, I have in my hand the bill which Judge Parker drafted and which is spoken of in the report, regarding amendments to the probate code. This bill, as I remember, passed the Senate and was very favorably considered by the legislature, and it should have passed the House had the legislature had time to give to matters of the importance which this was, and the committee considers it of enough importance that this matter should be taken up by this body and perhaps referred to special committee to advocate its representation to the legislature. I present the act, which was Senate bill No. 134, with the report.

Upon motion of Mr. Donworth, the report was adopted.

MR. FORSTER-I move that a committee of three be appointed by the President to take up Judge Parker's bill and report upon it tomorrow or the next day with a view of again presenting it to the legislature with such recommendations as they desire to make.

Mr. Ayer moved to amend by requiring the report to be made next year when the legislature meets.

MR. FORSTER-It seems to me that it is well enough to take this matter up at this session. No harm can come and we cannot get too much light and knowledge on this subject, as it is a matter of great importance, as the probate laws of this state are very crude and very unsatisfactory, and because consideration of the bill at this meeting will not prevent a further discussion at the next meeting. I am of the opinion that we should consider it now.

MR. TAYLOR-I think it might be wise for us to consider that bill at the present time. We considered that bill very thoroughly in the Senate and we considered it as simply a patching up of the probate law, and if the Bar Association want to amend the probate law why don't they draw up a probate code, one which is complete and not a patching of the one which we have.

Upon vote being taken, the amendment was declared lost, whereupon the original motion was carried, and the chair appointed as members of the special committee: Charles S. Fogg, of Tacoma; W. T. Dovell, of Walla Walla; and Thomas B. Hardin, of Seattle. The report of the Committee on Judicial Administration and Remedial Procedure came up as the next order of business.

MR. CROWLEY - Mr. Chairman and Gentlemen of the Associa. tion, Judge Reavis is the chairman of the committee and I have not been able to see or consult the other members of the committee since the making of this report, so that it will be in the nature of a report from the committee rather than of the committee, as I am not authorized to bind the balance of the members of the committee by this report:


To the President, Officers and Members of the Washington Bar Association: The Committee on Judicial Administration and Remedial Procedure beg leave to submit the following report:

The wonderful growth of the code system has been a source of gratification to the members of the bar at large. Lawyers are eminently conservative. By education and instinct they dislike change or innovation. So strongly was this disinclination to change fixed upon the members of the profession that generations passed, during which time, amongst English-speaking people, the old forms of common law and equity procedure still existed. In 1848 was adopted for the first time what is known as the New York Code of 1848, which contained among its characteristic features those leading features which to-day distinguish code pleading in general from the older system of the common law. For many years after the introduction of this code it met with furious opposition not only at the bar, but from the bench. Based upon the theory of simplicity, it finally won its way, and to-day in the United States it prevails in three of the central states and almost exclusively in the western states, having been adopted in toto in twenty-seven states and in part in many other states of the union. England, the parent country of the common law

and equity systems, for a long time adhered to the old forms of procedure, but at last came the time of awakening. By the Judicature Act of 1873, and subsequent legislation, England has placed herself in the ranks of the adherents to the code system of pleading. Though slow to change, when the change came it was complete. The more notable changes were at first by distinct series of statutes, relating respectively to the courts of law and the court of chancery; afterwards the whole system of English courts and their pleading, at law and in equity, were recast in one series of statutes. Now causes of action of whatever kind may be joined in the same suit provided they be by and against the same parties. Much of the old verbiage was abolished. The reform broke down the wall of separation between the administration of law and of equity. The radical nature of the English reform is illustrated by Mr. Montague Crackenthrope, of the English bar, before the American Bar Association in 1896.


The English system of common law pleading," said he, was finally swept away by the English Judicature Act of 1873. It had been encumbered with obsolete learning, and had been terribly abused by the ingenuity of pleaders during centuries of adroit manipulation. The abuses were not, I think, original, and much had been done to remedy them; but the system had fallen into discredit, and had become the scapegoat for the sins of the profession. It was determined that it should no longer be necessary to plead formal causes of action, but that each party should tell his plain tale unfettered by technicalities, or, as the rules expressed it, that his pleadings should contain, and contain only, a summary statement of the material facts on which he proposed to rely. The change was of enormous historical importance. The old system had been the mould upon which the whole common law had been gradually formed. All legal conceptions had been defined, analyzed, and formulated through the operation of that elaborate machinery. It provided a natural classification of the law, saving it from absolute chaos, so that students learned their principles as they went along, by mastering their procedure. Declarations, pleas, and demurrers have now become matters of antiquarian interest as far as actual practice is concerned. But, until the whole system of English law shall be recast and codified, the old learning respecting them will be indispensable to all who wish to be sound common lawyers. Without it a great deal of quite recent authority will remain obscure, and the old books in great measure unintelligible. Even in so simple a matter as an action of contract, it is necessary to know the peculiar and not unromantic history of the action of assumpsit. In an action for injuries against a carrier we must still be familiar with the distinction between the breach of a duty to carry safely and a breach of a contract to carry, though we are no longer put to a choice of one or the other form of action. And so long as written pleadings remain, the best masters of the art will be they who can inform the apparent license of the new system with that spirit of exactness and self-restraint which flows from a knowledge of the old."

So satisfactory has been this innovation among English-speaking people that it may be safely said to-day that the American bar is almost universally in favor of some kind of code system.

In the federal courts, however, the fewest changes in the way of approximation to the code system have taken place. As is said in Lindsay vs. Shreveport Bank, 156 United States, 485–494, the remedies in the courts of the United States are, at common law or in equity, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles, and that, although the forms of proceedings and practice in the state courts shall have been adopted in the circuit courts of the United States, yet the adoption of the state practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.

By section 914 of the Revised Statutes, it is provided that "The practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like tauses in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." This provision of the Revised Statutes so far as actions at law are concerned, resulted in a conforming to the code of procedure of the particular state in which the action was tried. No change of like character, however, has occurred upon the equity side of the courts of the United States and the proceeding on that side of the court has shown but little, if any, change from the ancient method of procedure in the high court of chancery. During the present year, however, an effort has been made to secure legislation in the direction of reform as to the methods of procedure. On May 27, 1897, two bills were introduced in the House of Representatives of the United States, numbered respectively 3292 and 3356. Bill 3292 is entitled "A bill to abolish the distinction between actions at law and suits in equity in all actions and suits in the United States courts, and to simplify the procedure in such courts." Should this bill be adopted, a radical change in procedure will follow. It is directly in line with the modern codes. The opening section says, "That the distinction between actions at law and suits in equity is hereby abolished in all causes of action arising under the constitution, laws or treaties of the United States, and hereafter in civil cases there shall be but one form of action in the United States courts which shall be called a civil action, in which all causes of action of the same class, whether legal or equitable, may be joined, provided that the relief sought in the several causes so joined is consistent." The other provisions of the bill are of such character as to greatly simplify the method of procedure.

Bill 3356 is entitled "A bill to provide for the revision and consolida

tion of the statute laws of the United States." Under its terms the president is authorized, by and with the advice and consent of the senate, to appoint three persons, learned in the law, as commissioners to revise, simplify, arrange and consolidate all statutes of the United States general and permanent in their nature, which shall be in force at the time such commissioners may make the final report of their doings. This is virtually an act to provide a definite code of procedure. The report is required to be completed, in print, to be submitted to congress on or before the first Monday of December, 1897.

In addition to this, an act has been passed by the congress of the United States authorizing the president to appoint three commissioners, whose duty it shall be, under the direction of the attorney general, to revise and codify the penal laws of the United States. We understand this act has been put into effect and the commissioners appointed thereunder. It is certainly a source of gratification to know that the penal statutes of the United States, now so thoroughly scattered and so difficult to find, will at last be brought into one body where they will be of easy access to the already overworked members of the profession. We believe that it is to the interest of the profession to have this legislation go through congress and become law. It is in the line of progress and will have a tendency to simplify the methods of procedure throughout the United States and to lead to an almost universal code system. England, the parent country, is now in advance so far as legislation of this character is concerned. This fact, of itself, is the very highest evidence of the usefulness and necessity of reform legislation in this direction. It is to the interest of litigants as well as counsel that celerity, simplicity and cheapness should characterize the progress of law suits from their inception to their end.

We therefore recommend that the State Bar Association of this state adopt a resolution calling the attention of our delegates in congress to the pendency of these bills and ask their coöperation in securing their prompt passage.


Another subject of practical importance, and which directly affects litigation is that of receivers. The hard times of the last few years has caused a wonderful increase in the number of receivers appointed. Formerly the appointment of a receiver was an unusual occurrence. Naturally their number was increased from time to time as the business interests of the country increased and the necessity existed for the courts to take into possession and care for property. No lawyer ten years ago looking to the future could have anticipated the enormous increase in the appointment of receivers which has taken place. At first receivers were appointed charily, and the principal object was to secure possession of property through the agency of such receivers and hold it subject to the disposition of the court. By necessity it soon became an established

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