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in special cases the judge may provide for service in a different manner, as he may deem best.
SECTION 5.—The judge may at any time in his discretion, order a reference to a referee, agreed upon by the parties or appointed by him, to report the evidence and facts, and to certify the same to the judge.
SECTION 6.-All examinations under this act shall be upon oath, and witnesses may be required to appear and testify in person, or by deposition, as now provided by law for the trial of issues by a jury.
SECTION 7.—No person shall, on examination pursuant to this act, be excused from answering any question on the ground that his answer would tend to criminate him ; but his answer shall not be used as evidence against him in any criminal proceeding.
SECTION 8.—The judge shall decide, according to the evidence, what property belongs to the debtor, and shall order such property as is liable for the debt, whether in the hands of the debtor or any one else, to be applied toward the satisfaction of the judgment. But any one claiming to be the owner of said property may file his claim thereto, and the same shall be tried in the manner now provided by law for the trial of claims.
SECTION 9.—The judge may appoint a receiver of the property of the debtor, with such duties and powers as usually belong to receivers in equity proceedings. He may also, by order, forbid the transfer or other disposition of the property of the debtor pending proceedings under this act.
SECTION 10 -If it appear that any one alleged to have property of the debtor, or to be indebted to him, claims any interest in the property adverse to the debtor, or denies the debt, such interest or debt shall be recoverable only in an action against such person by the receiver; but the judge may, by order, forbid the transfer, or other disposition of the property, till a sufficient opportunity be given the receiver to commence an action, and prosecute it to judgment; but such order may be modified or dissolved by the judge granting it at any time on such security as he may direct.
SECTION 11.-If any one shall disobey an order of the judge or referee, duly served, he may be punished by the judge as for a con. tempt.
SECTION 12.-Any decision or ruling of the judge, in any proceeding under this act, may be taken to the Supreme Court for review, under the same rules as now govern in bills of exception to applications for injunctions.
SECTION 13.—When an execution has been issued and the same re. mains unsatisfied, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the sheriff's receipt shall be a · sufficient discharge for the amount so paid.
SECTION 14.-All laws or parts of laws in conflici with this act are hereby repealed.
All of which is respectfully submitted to the Association for its careful and inature deliberation.
JAS. C. C. BLACK,
authority JNO. S. DAVIDSON,
WM. H. FLEMING,
I think it proper to state that the committee are indebted to Mr. Wm. H. FLEMING for the preparation of the foregoing report.
JAS. C. C. BLACK,
REPORT OF THE SPECIAL COMMITTEE ON
PREPARATION OF BILLS.
To the Georgia State Bar Association :
At your last meeting a special committee of five, consisting of W. R. Hammond, W. B. Hill, W. M. Reese, John Peabody and F. H. Miller, was appointed to prepare bills to be submitted to the General Assembly on the following subjects: Uniform Procedure, Pleading, Time of Trial, Mode of Trial, Continuances, and Proceedings in Error. The committee met in November last, and did its work. · Only three members, however, were present, to-wit, W. R. Hammond, F. H. Miller and W. M. Reese. Mr. W. B. Hill furnished a satisfactory excuse for his absence, and rendered valuable aid to the committee by sending a carefully prepared draft of a bill on Uniform Procedure.
The work of the committee had been previously apportioned by the chairman among the various members of the committee, so that when we met, bills had been prepared on all, or nearly all, of these subjects, and this work of the individual members was submitted to and carefully revised by the committee as a whole, and bills were prepared to be submitted to the General Assembly.
It will be remembered that in the report, at the last session of this body, of the Special Committee on Delays in the Administration of Justice, these various subjects were treated (see page 26 of Report, et seq.), and that report was the subject of full discussion and careful revision by this body. The result of that discussion and revision was made the basis of the bills prepared by the committee on those various subjects, and those bills, thus carefully prepared and revised by the committee, were placed in the hands of the chairman for the purpose of having them introduced in the General Assembly. This was done by him, and all the bills were introduced by Mr. Berner, the Chairman of the Judiciary Committee of the House. Subsequently, the Chairman of your Committee made an effort to get a copy of those bills for the purpose of preparing this report, but after tracing them into the hands of a member of the Judiciary Committee of the House, ascertained from him that they had all been lost by him, and that he had tried in vain to find them. This was an unlooked for disaster, and of course caused serious apprehension that all our labor had been in vain, as no copies were preserved. But fortunately one of the bills, and the most important one, on Uniform Procedure, had been published in full by the press, and one of the members of our committee had been prudent enough to preserve a copy, and so the loss can be partially repaired, and we have strong reason to believe that this bill, which is now before the Judiciary Committee, will meet with favorable consideration, and may pass and become a law.
Your committee submit herewith, appended to their report, a full copy of said bill, and beg to subniit, in addition thereto, some reasons why it should pass.
The bill has one main object in view, which is, to simplify and make uniform the civil procedure in the Superior Courts of the State. It abolishes the distinction between the method of procedure at law and in equity, a distinction not only considered unnecessary at the present time by the most advanced thinkers on that subject, but which can be easily shown to be cumbersome, and productive of great evil and unnecessary delays in the administration of justice.
This argument can, perhaps, best be presented by an illustration. A suitor, who has an undoubted cause of action, an unquestionable right to some sort of relief from some sort of a court, presents the facts of his case to his lawyer. That lawyer must choose his forum. Shall he go into equity, or shall he sue at law? If he does the latter—if he elects to sue at law—he is safe, for if he makes a mistake, he can amend and claim equitable relief, provided he does not have to set up a new cause of action, which may sometimes happen with the unskilful practitioner, who in his efforts to reduce his client's facts to the legal formula may omit important and essential features, such as would change the whole countenance of the case, and make it essentially new, and such as could not, therefore, be added by way of amendment. But if he does the former, if he elects to go into the forum of equity, and in so doing makes a mistake, and his opponent demurs at the first term, then no amendment can save him. His case must go out of court sooner or later, without a hearing on the merits.
Now this bill seeks to remedy tbat. The suitor sets forth his facts to his lawyer. The lawyer, from those facts, without being required to elect whether he will go into law or into equity, simply goes into court setting forth in a petition, plainly, fully, and distinctly, his cause of action. Then there is no danger that he will fail to get whatever relief he is en. titled to under that petition, whether legal, equitable, or both.
There are special features in the bill which need not be reviewed in this report, as the bill is copied in full, and speaks for itself; but the general object is as stated, and your committee confidently believe they have accomplished that object in about as good a form as is practicable, and they hope that you, both as a body, and each of you as individuals, will give it your hearty approbation and support.
Your committee can only regret the loss of the other bills, and trust that some provision will be made by this Association to repair the damage, in so far as it can be done. Respectfully submitted.
W. R. HAMMOND,
Ax Act to be entitled an Act to provide a uniform mode of procedure in
civil suits, except as herein provided.
SECTION 1.–Be it enacted by the General Assembly of the State of Georgia, That the Superior Courts of this State, on the trial of any civil case therein, shall give effect to all the rights of parties, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require. In any case where there is a conflict between the principles of law and equity, the principles of equity shall prevail.
SECTION 2.-Be it further enacted, That hereafter all civil suits begun in a Superior Court of this State, founded on a legal or equitable cause of action, for a legal or equitable remedy, or both, shall be commenced by a petition addressed to said Court, which shall set forth the cause of action, legal or equitable, or both, which is hereby allowed, and his claim for legal or equitable relief or remedy, or both, which is hereby allowed, plainly, fully, and distinctly. The statement of facts constituting the aforesaid cause of action, and ground for such remedy or relief, shall be by separate allegations, so that the defendant, in his plea or answer, may be able to specify which allegation he intends to deny, or reply to, or join issue upon. Nothing, however, in this Act contained, shall affect the right of the plaintiff or defendant to unite in his petition or answer as many and such causes of action or defense as are now allowed by law.
SECTION 3.—Be it further enacted, That wherever by existing law copies of contracts or other instruments of writing, records, exhibits, and abstracts of writing should be incorporated in or attached to the pleading of the parties, the same rule must be followed in pleadings referred to in Section 2 of this Act.
SECTION 4.-Be it further enacted, That whenever any extraordinary relief or remedy, as known in courts of equity, is claimed in ald of any action or defense, as provided for in Section 2 of this Act, the same may be claimed from the Superior Courts of this State, or judges thereof, according to existing law, either in the original petition and answer, or by