REPORT OF COMMITTEE ON

AND LAW

JURISPRUDENCE

REFORM.

To the Bar Association of Tennessee:

Your Committee on Jurisprudence and Law Reform have, at the outset, felt much embarrassed in the preparation of their report by what they conceive to be an ambiguity in the section of the by-laws defining their duties, which declares that this committee "shall be charged with the duty of attention to all proposed changes in the law, and of recommending such as, in their opinion, may be entitled to the favorable consideration of the association." (By-laws, art. 7, sec. 1.)

From the peculiar language of this section, especially when contrasted with the very different phraseology of the succeeding section relating to the duties of the Committee on Judicial. Administration and Remedial Procedure, your committee is of the opinion that, under the by-laws, their duty does not extend to the original suggestion of desirable changes in the law, as is plainly intended in the case of such other committee, but is limited to the consideration of such changes as have been theretofore proposed for the consideration of the association, and, as the association has not referred to them any proposed changes in the law, and has not now pending before it any proposed changes which do not come within the jurisdiction of other general or special committees, they feel that, under a proper construction of the by-laws, there is probably no duty for them now to discharge.

Thinking, however, that they might be mistaken in this view, and that they may be expected to themselves suggest changes in the law, as has been frequently done by their predecessors, they have yet been much embarrassed by the multiplicity of matters claiming attention and by doubts as to the scope of the changes proper to be suggested and as to the most advantageous method of procedure.

They have felt, in the first instance, that it would perhaps be inappropriate to bring before the association matters of general

legislation not in some measure specially concerned with the legal profession, and that only such changes should be here considered as have some specific connection with the profession or concern matters with which lawyers habitually deal, although the by-law imposes no such limitation.

At the outset, upon obtaining an expression of opinion from the different members of the committee as to the changes which they regarded as most desirable, the following were proposed:

The member of the committee from Shelby county suggested that next in importance, in his opinion, to a constitutional convention and to a general code revision is the legalizing of primary elections.

One of the members from Knox county has suggested the necessity of a federal law restricting the right of appeal in criminal cases from state courts to the federal court, upon technical grounds which serve merely as a stay of sentence and bring abuses of the law similar to that in the Durant case, of California. The same member has also suggested the passage of a law raising the age of consent in females to eighteen years.

The chairman suggested as suitable subjects for report the need of a general revision of the laws in reference to the registration of deeds and other muniments of title, including a provision that all instruments affecting title shall be recorded in the register's office of the county in which the land lies, the enactment of a general law in reference to the powers and liabilities of municipal corporations, and a thorough revision of the laws in reference to taxation and to private corporations, and, in connection with the general question of land titles, has suggested a careful investigation as to the merits and applicability to existing conditions in Tennessee of the Australian system of land titles, which has been adopted in Canada, and one or two American states, and is commonly known as the Torrens system, the essential feature of which we understand to be that all muniments of title issue directly from the state in the shape of certificates of title, there being at any given time but one certificate of title outstanding to the same piece of land, and upon any

change of ownership, the original certificate being returned to the government office and canceled, and a new certificate issued directly to the new owner in a manner similar to that in which certificates of stock are transferred on the books of a private corporation.

Your committee being somewhat undecided as between these various suggestions, determined, before making any recommendation, to examine the report of their predecessors in years past in order to profit by their suggestions, and by the action of the association upon these various reports.

We have, to this end, examined the successive reports of the Committee on Jurisprudence and Law Reform from the years 1888 to 1896, inclusive, having access to the reports of the proceedings for no other years, and having found a state of affairs that seems to us to lead to important conclusions, have thought it proper to present a summary of the same to the association.

In 1888 the committee advocated, at length, the calling of a constitutional convention, recommended many changes, in the law regulating pleading and practice, the regulation of the right of appeal and of jury trials, the establishment of houses of correction and reformatory schools, inclined to favor the restoration of the whipping post in certain cases, and advocated the establishment of a committee of revision, to whom all legislation should be referred before final vote, and a general codification of our statute law, together with other minor matters. After extended discussion some of these recommendations were adopted and some not; but no further action was taken on any of these matters, except as to a constitutional convention.

In 1889 the chairman of the committee reported that in his opinion there was too much legislation, rather than too little, and recommended only the calling of a constitutional conven

tion.

In 1890 the committee recommended an amendment to the constitution providing that the supreme court should hold sessions only in Nashville, suggested the establishment of interme

diate district courts of appeal, and recommended the enactment of laws authorizing the employment of sworn stenographers in the trial of cases and limiting the right of a plaintiff to take a nonsuit or dismiss his case without prejudice. The association concurred in some of these recommendations, and not in others; and there the matter rested, so far as the association was concerned, though the recommendation as to stenographers was largely adopted in subsequent legislation.

In 1891 the committee recommended that an act should be passed providing for the acknowledgment of instruments affecting real estate, substantially in accordance with the form of a statute recommended by the National Bar Association; that railway companies should be made responsible to employes for the negligence of other employes of a superior grade in a different department of service; that corporations, before engaging in business, should be required to file a sworn list of their stockholders, and the amount of capital subscribed and paid in; and that an infant feme covert who has executed a deed to real estate, in form as required by law, shall take steps to avoid the same within three years after obtaining her majority, or be forever barred. All four of these recommendations were concurred in with minor amendments. Not one of them, however, has become a law, nor have any steps been taken in that direction by the association, so far as the committee is aware.

In 1892, 1893, and 1894, the committee appears to have made no report, perhaps because no proposed changes had been submitted to it.

In 1895 the committee recommended the appointment of a commission to draft a code for municipal corporations, and also advocated at length the calling of a constitutional convention, this report likewise being adopted.

In 1896 the committee recommended the repeal of the statutes requiring certain corporations to pay dividends whenever they had on hand sufficient to pay four per cent., and the making

of embezzlement in all cases a felony, suggested the release of stockholders of insolvent manufacturing corporations from liability for wages of laborers, and advocated the organization. of a permanent international tribunal for the peaceful settlement of all controversies between the English speaking people. The association took no action on this report.

It will thus be seen that in these eight years, the committee has reported on a great variety of matters, ranging from the whipping post to international arbitration, the reports having consisted of very able and scholarly monographs upon special features of the law, involving much research and thought upon the part of the committees, but in which the association, as a rule, has as a body taken little interest, and which have, as a rule, been barren of results; the experience of the association being, we believe without exception, that nothing has been accomplished by it except in those matters as to which special committees were appointed to focus their energies upon one particular matter.

Under these circumstances your committee does not feel justified in adding any further to the long list of proposed changes in the law which have been gently laid to rest by the association from year to year, but feel that our report may be of more service if confined to a suggestion as to the manner in which the future labors of this committee may be productive of more good. If the committee is to report at all, and if the association is to continue its efforts for the accomplishment of practical legislative reform, then it seems to us some steps should be taken to systematize the labors of this committee and render them more effective. We feel that the trouble lies largely in the fact that the by-law prescribing the duties of this committee is too indefinite, and that, as a result of its vague language, necessarily its reports on miscellaneous subjects, not having been confined to special subjects about which the association was sufficiently interested in advance as to desire a special report, have not had the effect which the ability and labor employed in their preparation deserved.