court. Then there is another phase of this proposition which I think the Association ought to have clearly in mind before directing the committee to present it again to Congress, and that is: That the wording of the Act now proposed may work an injustice to the plaintiff, and give any benefits that may be derived from it to the defendant. Under the language of the Act the power of the court to enter a judgment upon the law, regardless of the finding of the jury, is enlarged to some extent. would be proper if the original language were used and it were made obligatory in every case to submit the entire facts to the jury. Henry H. Ingersoll, of Tennessee: That I rise to a point of order. There is no motion before the house to which the gentleman is speaking. Chairman Smith: There is a motion before the house that the report be received and adopted as a whole. The Chair understands the gentleman from Kentucky to be explaining why he is about to move a reconsideration of the vote by which the first resolution was adopted. It seems to the Chair that he is in order. Henry H. Ingersoll, of Tennessee: Did the gentleman vote in favor of accepting the resolution? If he did not, he cannot move to reconsider the vote by which that resolution was adopted. Clarence C. Hieatt, of Kentucky: I did. I think this Association should be very careful not to urge any legislation which would discriminate in favor of one class of litigants as against another. I think it would be a serious wrong if this Act as proposed, and as the committee secured its passage through the lower house of Congress, would have the effect of enlarging the powers of the court over facts, and at the same time take away from the plaintiff the right of having the whole case presented and having a finding of fact by the jury upon that case, so that the whole record shall be before the Appellate Court when it comes to consider the appeal. I move a reconsideration of the vote by which the first resolution was adopted; and I move further that the committee be instructed to urge upon Congress the passage of the Act as set out in Schedule A, only substituting the word "shall" for "may" and the word "every" for "any." Chairman Smith: Is the gentleman's motion seconded? John G. Tomlin, of Kentucky: I second the motion. Roscoe Pound, of Massachusetts: As originally drawn the proposed measure used the word "must." At the meeting of the Association in Seattle after a full debate that word was changed to "may." I think the gentleman from Kentucky comes from one of three or four commonwealths, where, as at common law, the power of reserving questions of law exists. Possibly he is not aware of the fact that it does not exist generally and hence does not exist generally in the federal courts. So that we are giving plaintiffs something that they do not generally possess in the federal courts. Our object in using the word "may" instead of "must" was not to make it obligatory upon the courts to reserve questions of law, in cases where upon the pleadings or the plaintiff's claim there is no cause of action, and, therefore, it would be a waste of time to go into the complete taking of all the evidence. The motion to reconsider was put and lost. Chairman Smith: The question now recurs upon the motion made by Mr. Wheeler, that the report and the resolutions contained in it be approved as a whole. Alexander H. Robbins, of Missouri: The last part of this report deals with something else than the mere resolutions to which there may be an objection. I disagree with much in the latter part of the report not yet read. If the report is not approved as a whole, but the resolutions merely are adopted, the situation would be cleared. James D. Andrews, of New York: I am ready to vote for the motion as put by Mr. Wheeler as I understood it, which was that the report be accepted. The Chair said "accepted and approved." Chairman Smith: If the Chair incorrectly stated the motion as made, he is glad to be corrected. The motion to accept the report was carried. The Association then adjourned until 10 A. M., Thursday, August 31, 1911. THIRD DAY. Thursday, August 31, 1911, 10 A. M. The President called the meeting to order and introduced Robert S. Taylor, of Fort Wayne, Indiana, who read a paper on "Equity Rules 33, 34 and 35." (See the Appendix, page 361.) The Assistant Secretary read additional names recommended by the General Council for election to membership in the Association, and the proposed new members were then elected. (See New Members marked () in State List, page 179.) The President: The next business is the nomination of officers of the Association. William P. Bynum, of North Carolina: The General Council nominates the following gentlemen as officers of the Association for the ensuing year: For President, Stephen S. Gregory, of Illinois; for Secretary, George Whitelock, of Maryland; for Treasurer, Frederick E. Wadhams, of New York. As members of the Executive Committee: Ralph W. Breckenridge, of Nebraska; Lynn Helm, of California; John Hinkley, of Maryland; Hollis R. Bailey, of Massachusetts, and Aldis B. Browne, of the District of Columbia. The President: Under the By-laws the report lies over until later in the session. James M. Beck, of New York: If miscellaneous business is in order I make a motion which I believe will receive general acquiescence, yet with your indulgence I should like to explain it in a very few words. Some years ago I visited Richmond and with very deep interest. went to see the home of Chief Justice Marshall. I was told that which surprised me that there was some possibility that this historic mansion, perhaps only second in interest to Mount Vernon, might pass out of the hands of the municipality, and share the fate of New Place, the property which Shakespeare bought in the days of his prosperity and renown, and which a subsequent purchaser ruthlessly tore down to the intense disgust of all future generations. When I returned to Washington I spoke to several of the Justices of the Supreme Court about it, especially the lamented Brewer, and they expressed their great solicitude in the matter. Some months ago I was gratified to be informed that the city of Richmond, in order to preserve forever the home of John Marshall, had purchased it and deeded it in trust to the Association for the Preservation of Virginia Antiquities, and it was the Association's design not only to hold the place in perpetual trust, but also as far as possible to furnish it not merely with the furniture that Marshall had used, but with the books that he had left and with all the writings and manuscripts that bore his signature and could possibly be gathered together to make the nucleus of a John Marshall Museum. I was recently informed that the local Bar of Richmond had appropriated $500 to that very worthy object, and that the Bar Association of Virginia had appropriated $1000. It seems to me that the American Bar Association, which can have no secondary interest where the name and fame of Marshall are concerned, should not be behind its brethren of Virginia. Therefore, I move that the Executive Committee of the American Bar Association be authorized to confer with the Association for the Preservation of Virginia Antiquities, the present trustee of the John Marshall home, and in its discretion, make such appropriation as it thinks proper to the perpetual preservation of the home of John Marshall. The motion was put and carried. Thomas Mackenzie, of Maryland: I have a resolution that I should like to offer and have referred to the proper committee. Charles A. Boston, of New York: I have two resolutions which I will not read, but will pass. up to the Secretary's desk and ask that they be properly referred. Thomas W. Shelton, of Virginia: I also have a resolution which I will pass up and ask to have referred to the Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation. The President: These resolutions cannot be considered by the Association at this time and need not be read. They will be referred to the appropriate committees. Charles A. Boston, of New York: I wish to have one of my resolutions referred to the Executive Committee and the other to the Committee on Jurisprudence and Law Reform. The President. There was a committee appointed on Wednesday to formulate and present to the Association a minute on the Recall of Judges. The Chair calls upon Mr. Francis Rawle, the Chairman of that committee, for the report. Francis Rawle, of Pennsylvania: I will ask the Assistant Secretary to read the resolution of George Whitelock, of Maryland, under which we were appointed a committee. |