properly established. This course, when it can be followed without prejudice to either party, expedites the second trial and materially lessens the expense.

By virtue of particular code provisions and rulings of the supreme court thereon, all that was necessary in order to have an instruction reviewed was to note an objection and exception thereto. This practice was of no assistance to the trial judge. It in no manner aided him in correcting errors he may have committed in formulating his instructions. It operated as a mere dragnet, which counsel cast out at random to draw in at leisure and examine for results, long after the time the errors alleged to have been committed caused the mischief, of which he subsequently complains on review, that might have been avoided had he specifically pointed out wherein an instruction was erroneous. It was unfair to the trial court, as well as litigants, and often compelled the reversal of a judgment which might not have been different had the instruction been correct. To prevent these results it was provided by rule that the trial judge should afford respective counsel reasonable opportunity to examine proposed instructions and present objections thereto before given to the jury; that these objections should specify the particulars wherein an instruction was defective or not correct, and on motion for new trial or on review by the supreme court, only the objections so specified could be considered.

Rules of practice and procedure need only be varied to meet peculiar local conditions in the respective states. Except in these respects they can be substantially uniform. The plan proposed appears to be feasible. The authority to carry it out can be conferred by legislative action. There is no fundamental legal objection to interfere, and aided by the general demand for reform in practice and procedure a united effort by the Bench and Bar ought to be able to bring it about within the limits suggested.

The Chairman:

We have this question now open for general discussion. As you will note on the program, there is a rule that each speaker will be limited to seven minutes. A word before we open this matter may be helpful along this line there are people here, appointed as representatives of courts of last resort, where the judges themselves are unable to be here-they are entitled to talk if they so

desire, and if I hear no objection, I will consider that any person who has served as a judge, or who is here as a representative of one of those courts, will be entitled to discuss this question, if he so desires. There are one or two people I know who are not now serving on the Bench, but who have served, and who have. given special attention and study to this subject in the states from which they come. The question is now open for discussion.

Judge Jacob Trieber, of the United States District Court of Arkansas:

To have a uniform code practice throughout all the states of this union is the highest ideal of every lawyer, but how can it be accomplished? To permit the Supreme Court of the United States to make rules to govern the practice in the course of proceedings on the law side of the national courts, and thereby repeal the Conformity Act enacted by Congress in 1872, which adopted the code practice of the state in which the court is held, would simply result, so far as lawyers practising in the two courts are concerned, in having to adapt themselves to two different codes of practice, something which it was sought to avoid by the Conformity Act of 1872. It may be said that if the Supreme Court would adopt a liberal code practice, simplifying the present practice, that the states would immediately adopt it. I very much doubt it. I am not familiar with the legislatures of many of the states, but I am somewhat familiar with the legislature of my own state, and I doubt whether it would do so, as the lawyers are now familiar with our practice, and would be slow to consent to a radical change. I want to state that we have a good code of practice in the State of Arkansas; it is as simple as any can be. As Judge Caldwell, who was for years the presiding judge of the United States Circuit Court of Appeals for the Eighth Circuit, once said: "Under the code of practice of Arkansas, a trial is not a test of who is the best lawyer, but it simply means that when a man gets into court you cannot put him out until he has had a trial, and, if he has a good cause of action, until he gets a judgment." Now, let me explain to you something about our code. All you have to do to get into court is to file a paper with the clerk that recites the name of the plaintiff and the name of the defendant, and state why you think you ought to have relief. If the attorney for the defendant is not

satisfied with it, it requires him to educate the other lawyer and tell him how to prepare a complaint. All he can do is to require him to make it more specific, and point out in what respect, and if he does not hit it the first time, he continues until he gets a complaint to the satisfaction of the defendant.

Now, some lawyers thought they would get around it. They would answer without asking to make it more specific, and then they would object to the introduction of any evidence which was not raised by the issues, but the court promptly held that as there was another provision in the code which says that the pleadings may be amended at any time before the jury retires, to conform to the proof, any kind of proof within the allegations of the complaints is admissible.

There were some lawyers who thought they could get away with that, and decided that they would not ask to have the complaint amended, but would take the chance after verdict to have it set aside because the proof did not establish the issues raised by the pleadings. But the court said-the Supreme Court of the state that under our code the plaintiff could have amended the complaint to conform to the proof, if his attention had been called to it, and the defendant having failed to do so, he cannot now be heard, but that the complaint will be treated as amended to conform to the proof, and that is the law of our state. We have a very simple code of practice.

Now, how many lawyers do you suppose would be willing to give up that practice for the purpose of adopting some new practice which might require them to familiarize themselves with a new code of practice?

But there is another thing. May we reasonably expect all the states to adopt a new code? The former equity rules of the Supreme Court were promulgated in 1842, and does anyone know of a single state adopting them? The new equity rules, which simplify the practice very much and expedite the trial of cases, were adopted three years ago, and if any state in this union has adopted them I have failed to hear of it.

There seems to be a difference of opinion among many federal judges as to what the new rules mean, and it may take fifteen years before the Supreme Court will construe them. Quite a discussion has been going on as to whether under the new equity

rules, evidence being taken orally, it is necessary to have a bill of exceptions in order to bring that evidence before the appellate court. Heretofore there was no bill of exceptions. Then, there are other questions which have arisen. One of the questions is, What effect is to be given to the findings of facts by the judge in a proceeding in equity? Heretofore the rule has been that the findings of facts made by the chancellor, while persuasive, they are not conclusive. Now, as the judge has the witness before him, and he sits as a sort of a jury, are his findings of facts going to be conclusive, or not; are they going to have the same effect as the findings of facts by a judge when a jury has been waived in an action at law?

Besides there are condition in each state which may require at the present time a difference in the practice. For these reasons I doubt very much whether rules of practice to be prepared by the Supreme Court of the United States would accomplish what its advocates hope for.

My suggestion would be for this Association to appoint a committee to prepare a uniform code of practice to be submitted to the states, as has been done, and with great success, in other matters. To recommend to the legislature of the state to authorize the Supreme Court of its state to prepare rules of practice for all the courts in that state, and I have no doubt that the judges of these courts, if the uniform practice law recommended by this Association will simplify the practice, will adopt it, with such changes as may be necessary to meet the conditions in that state.

Judge John B. Hanten, of South Dakota:

I can only speak about the practice of our state courts. In our state in the last four years we have simplified our practice to some extent. We have adopted the same rules for all the circuits. They were made by the Supreme Court, with the assistance of the State Bar, so our practice is uniform in the State of South Dakota in the trial courts, being the circuit and municipal courts. We have simplified our practice a great deal in the appellate court, so much so that now within three or four months we get a decision from the Supreme Court from and after the time the appeal is taken and filed. The most delay that we have today is in our trial courts and along these lines: First, to get the case tried;

second, to have the court try all the issues set forth in the pleadings; third, to get a decision if it is a court case; and, fourth, to get the record made up, either for a motion for a new trial or for appeal. In our municipal court of record cases are tried speedily, because we have a provision in the law providing that an attorney may be called in to try the case if the judge is disqualified or cannot try it. We are advocating today that if the judge has not time because of pressing business elsewhere in the circuit to try a case with a jury that a member of the Bar be appointed to try the case, who is not interested in the case and upon whom the attorneys may agree, or who may be appointed by the court, if there is no objection, the same as in a court matter, but who would try the case with the jury and dispose of it. This would do away with the delay numbered first. As to the second cause of delay, this comes about by the court trying the case eliminating or rejecting some issues that either one side or the other wants tried or made a part of the case, but which the court erroneously refuses to try. This, of course, is taken to the appellate court and a reversal is had and the case has to be tried again, and many times rejected issue or issues are the main part of the case. This causes delay, sometimes for years before the case is finally settled or terminated. It would seem that this could be remedied by trying the case on all the issues which are made up in the pleadings, and if the court feels that some of the issues are improperly injected into the case, then, besides the general verdict, a special finding could be requested to be made by the jury, and on this general verdict and the special findings the court could make judgment either on the general verdict or on the special findings, if found to be the law, and set aside the general verdict. This would give one trial to both parties in the trial court, it would end it there, and if either party was dissatisfied the case would go to the appellate court and there a trial de novo could be had, if wanted, and the matters in issue could be determined finally. This certainly would be a great saving of time, obviate repeated trials, determine the controversy or claims of both parties and do it within a reasonable time. As to the third cause of delay, it would seem that the trial court in a court of record could render a decision at the time the case was tried and after the argument had been made. The court knows more about