And it is to be noted that this division of courts of small jurisdiction, called "District Court," in the Mississippi plan, corresponds to the County Court scheme in England. In the debates that preceded the New York Constitutional Convention in 1915, it was urged with considerable force, and with the most sincere conviction in the upper part of the state, that the people would not consent to the abolition of the Surrogates' and County courts for the reason that they were locally accessible; that even though the judges presiding over these courts were not always men of supreme court calibre, yet they were of the vicinage, they were the confidants of the community and that if they committed errors of law, their acts were readily reviewable. The trouble with this criticism was that it assumed that, if the courts were taken up into a general court, the present scheme of differentiating between the Supreme Court with its terms and judges, and the County and Surrogates' courts with their terms and judges, would come to an end, and the people would be remitted to terms and sessions of a court not corresponding to that with which they were familiar. This begs the whole question and is far from being the purpose of the unification of the courts. For, if the Surrogates' Court of a particular county is taken up by this amendment into the Court of the State, nevertheless, the Surrogate or County Judge presiding, is also taken up into the judicial system, which contemplates a divisionalization of the jurisdiction of that court and an immediate and continuous assignment of that particular functionary to the same duties he has been discharging with the most important modification and development that in any matter coming before him for cognizance, he can exercise at law or in equity the plenary powers of the unified court into which his court has been taken up and assimilated.

G

In connection with our discussion of one or more appeals, it is interesting to note the general purpose of the Mississippi plan "to eliminate more than one trial in the court below and the delay and expense of two trials, where the lower court is presided over by a judge learned in the law," that is to say, that appeals are duplicated only where taken up from a quasi-judicial tribunal or a justice of the peace, or district judge. Consequently from any divisional part of the unified court other than these, the appeal is direct to the

division of final appeal. Your committee has no quarrel with this device.

H

With regard to the method of selection of judges, we note that the Mississippi plan contemplates that with the exception of the chief justice, who is to be elected from the state at large, the associate judges and justices are to be elected territorially from within the various circuits and contiguous territories which are to be created by the Judicial Council, but we note this extract from the report with regard to the question of candidacy for judicial office:

The size of the present Supreme Court districts, each covering one-third of the state deter all but a few from indulging in any active ambition towards the Supreme bench. Lawyers do not now practice over many counties as in years past. An able lawyer in one county may be almost unknown to the people at large in a distant part of one of our present Supreme Court districts. To make now such a canvass as is necessary to become generally acquainted means the abandonment for months of their practice which few can either afford or will risk.

Then, after discussing the question of the territorial arrangement of the circuits for the more important judicial offices, this proposition is set forth, which bears, we think, adversely on the question of the propriety of election to judicial office:

It can well be apprehended that there is more than one circuit in the state at present where certain influences, or certain combinations, especially in those containing a large town or city, may hold the balance of the voting power, and put a judge in fear unless he do or omit to do as it shall be brought to his understanding that he is expected. This is obvious and need not be dwelt upon. So being it must be safeguarded everywhere possible.

PART TWO-SUGGESTIONS FOR A SHORT PRACTICE ACT

From the foregoing suggestions with regard to matters of sufficient permanent importance to be set forth in a Constitutional Judiciary Article, we pass to the second stage of this report, i.e., what matters of procedure may properly be left to the control of the legislature as representing the people rather than committed to the courts for their regulation and development from time to time, that is to say, what ought a Short Practice Act to contain in contradistinction to rules of court.

From one point of view this is the most difficult task before the bar. It may be that the American Judicature Society has so con

sidered it, because, having framed a general Judicature Act and being now engaged in formulating rules of general applicability, it proposes as the last stage of its service to the profession and to the community, to propose a model Short Practice Act. This committee has had the advantage of considerable material, but the wealth of it available has merely proved the magnitude of the task.

The English Judicature Acts, beginning with the Supreme Court Judicature Act of 1873, 36 and 37 Vict. ch. 66, marked a most interesting step in the evolution of the simplification of practice by the unification of courts. It consolidated into the Supreme Court of Judicature in England the High Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Westminster, the Court of Exchequer, the Court for Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, and divided the new court into two "permanent divisions," one under the name of "Her Majesty's High Court of Justice," which, it was provided, "shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior courts as is hereinafter mentioned," the other, "Her Majesty's Court of Appeal," which was "to have and exercise appellate jurisdiction with such original jurisdiction as hereinafter mentioned as may be incident to the determination of any appeal."

A member of the New Jersey bar17 rendered a considerable service to that state by contrasting the courts and procedure in England and those in New Jersey with a view to the enactment of the Short Practice Act of New Jersey. The Connecticut Short Practice Act is probably as concise as any in operation. There has also been promulgated in the state of Illinois, "An Act in Relation to Practice and Procedure in Courts of Record."

The Rodenbeck Commission in New York in its report hereinbefore referred to,18 drafted a Civil Practice Act of seventy-one sections, which has been subjected to very careful and, in the main, sympathetic examination and criticism--in particular, by a committee of the New York State Bar Association in 1916. With the following preliminary statement we are in hearty accord:

"The present code system in this state of regulating details of

17 Hartshorne, Courts and Procedure, England and New Jersey, published by Soney & Sage, Newark, New Jersey, 1905.

18 Vol. I, 1915.

practice by statute has been tried and has so lamentably failed and has been condemned in such unmeasured terms that it may be passed by without further comment."19

The most helpful, interesting and valuable examination and criticism was made by a subcommittee of the "Committee on Practice and Procedure in the Supreme Court" of the New York County Lawyers' Association, of which Mr. Max D. Steuer was chairman, which drafted a Short Practice Act of fifty-six sections. Your committee deems this draft of sufficient importance to annex it as an exhibit to this report, marked "A." For the purpose of this discussion, however, and to support our contention that any such act must be less specific, we venture to call attention to Sections 20 to 29 inclusive, which relate generally to examinations of parties and inspections of documents before trial within or without the state, and contain nearly 1,400 words.

Each of these sections is in itself concise and specific and presents a particular phrase of the subject-matter covered, but in our judgment it is too voluminous and too specific. Having the force and operation of a statute the mere fact that it is provided elsewhere in the same statute that it shall be "liberally construed" will not alter the fact that, as with similar provisions in the past, procedural statutes are usually construed into refinements, elaborated into particulars that have led the legislature to enter upon a career of amendments and supplements that soon swell the original compact statute into an unwieldy code. We have selected, accordingly, these particular sections for the purpose of illustrating our primary contention that in a statute as well as in a constitutional provision the treatment should be generic and not specific. We start, therefore, with the premise that in our proposed constitutional article there has been provision made for the appointment of Masters or Supreme Court Commissioners before whom the preliminary, interlocutory or supplementary procedural motions shall be brought on by summons for direction and disposed of by "omnibus order" under such general rules as the Court of the State may promulgate.

If such provision be made in the Constitution and such rules

19 Report of the Board of Statutory Consolidation of the state of New York, on a Plan for the Simplification of the Civil Practice in the courts in this state (1912).

be promulgated, then these sections of a Short Practice Act need not be so elaborate or specific and in the Master's office all the details of the necessary orders to be entered can be all disposed of under the "omnibus order" and on the return of the summons for direction. If this be possible, then, so far as the short practice act is concerned, its provisions could be embraced within one broad, comprehensive section, reading perhaps as follows:

EXAMINATION BEFORE TRIAL, AND DISCOVERY

1. Upon such notice and terms as the Court by its rules may from time to time prescribe a party may before trial and within or without the state, take, before a Master or an officer authorized to administer oaths, the testimony of another party or of any witness, on oral or written interrogations and upon reasonable notice to all other parties to the action to whom the opportunity of cross examination is hereby reserved. Upon any such examination any material papers, books or records, may be required by any party to be produced by any other party and examined and copied in whole or in part.

Provided that upon the trial of the action the Court may exclude such testimony or copies or parts thereof as may not be necessary for fairly disposing of the cause, and may impose costs upon any party found by it to have proceeded for such examination or discovery in a vexatious, dilatory or unreasonable manner. 2. Inspection and identification of documents. Upon such notice and terms as the Court by its rules may from time to time prescribe, upon application of any party before trial the Court, or a Master thereof, may by order require any document or books referred to in any pleading or affidavit in the cause to be produced for inspection or a sworn copy thereof furnished; and the Court or such Master may deal with such documents, books or sworn copies in such manner as shall promote the fair disposition of the cause at the trial thereof.20

The object of these applications is assumed to be twofold: (a) Theoretically, the more the facts are known to the parties on both sides before actual trial the greater likelihood there is of a settlement of the controversy without troubling the court by a trial. (b) But if not settled, then everything essential to the "fair disposition" of the cause is certainly made available to the trial court. There is less likelihood of "surprise," and fair-minded counsel having inspected letters, alleged releases, accounts, mutual or stated, or admissions in documents or books of account, can more faithfully advise their clients and save the time of the courts and the public moneys.

The object of being general rather than specific in such sections 20 Cf. §§ 20-29, post, of Exhibit A.