him left by a passenger who had left the car. He picked up the package, examined it and found no name or mark upon it. He disembarked at the first subsequent station stop of the train, taking the package with him. He was about ten feet from the car when a railway guard in whose charge the car was, touched him on the shoulder and said: "What are you going to do with that package?" to which he replied: "I am going to keep this and advertise for the owner." Forthwith the general trainmaster of the defendant, Mr. Blewitt, spoke to a police officer. After a brief conversation the plaintiff, the officer and Blewitt went to the police station, where Blewitt made the charge or complaint that the plaintiff found the package on the train of the defendant and refused to surrender same to officials of the railroad company. The police captain in charge of the station then held the plaintiff in $500 bail, and he was put and remained in a cell until the bail was furnished. In the meantime the package had been opened and found to contain a loaf of bread. The next morning the plaintiff appeared in the Magistrate's Court. Blewitt then and there verified a written complaint which stated that the plaintiff, "with intent to deprive the true owner of his property, in the view and presence of complainant, did willfully steal, take and carry away from a car of the Sea Beach Line a parcel containing a loaf of bread, of the value of about five cents, the property of a passenger who had left said car at 59th street station and had left said parcel behind him. Wherefore deponent charges said defendant with the crime of petit larceny." The plaintiff was held to answer in bail for the Court of Special Sessions. In the Court of Special Sessions the plaintiff was tried and acquitted. Whereupon plaintiff brought this suit.

The Court of Appeals in its opinion declares this package to have been "left" property not "lost" or "abandoned" property, entitling the finder to superior rights against all but the true owner. This distinction is recognized in the old Tennessee case of Lawrence v. State, 1 Humph. 227, where the Court said that

"To lose is not to place or put anything carefully and voluntarily in the place you intend and then forget it; it is casually and involuntarily to part from the possession; and the thing is then usually found in a place or under circumstances to prove to the finder that the owner's will was not employed in placing it there. To place a pocketbook, therefore, upon a table, and to omit or forget to take it away, is not to lose it in the sense in which the authorities referred to speak of lost property."

In the principal case, the package found in the car was not "abandoned" but "left" in the

possession of the street car company as a gratuitous bailee. On this point the New York Court of Appeals said:

"After the passenger owner had left the car, forgetting to take the package with him, the plaintiff knew the package was not lost property. It or the custody of it did not belong to him then any more than it did while its owner was in the car. He saw and knew the owner had forgotten it, and had left it by mistake. It then had become in the custody and the potential actual possession of the defendant. It was the right of the defendant and its duty to become as to it and its owner a gratuitous bailee. It was its right and duty to possess and use the care of a gratuitous bailee for the safekeeping of the package until the owner should call for it."

The authorities abundantly sustain the decision of the New York Court in this case. Rebina v. Pierce, 6 Cox Cr. L. 117; State v. Courtsol, 89 Conn. for it (Rebina v. Pierce, 6 Cox Cr. Law Cases 415; Kincaid v. Eaton, 98 Mass. 139; McAvoy v. Medina, 11 Allen 548; Foster v. Fidelity Safe Deposit Co., 264 Mo. 89; Hoagland v. Amusement Co., 170 Mo. 335; Ferguson v. Ray, 44 Oreg. 557; Hamaker v. Blanchard, 90 Penn. St. 377; Deaderick v. Oulds, 86 Tenn. 14; Griggs v. State, 58 Ala. 425; Regina v. Moore, 8 Cox Cr. Law Cases, 416; People v. McGarren, 17 Wend. 460; State v. McCann, 19 Mo. 249.

THE LAW'S DELAYS AND SOME PROPOSED REMEDIES.

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The delay of the law is an ancient grievIt furnishes a splendid opportunity for invective, and a safe one, for there is no one who will defend it. Most people prefer to endure it. The attitude of most lawyers toward it either is one of sullen disgust or of whimsical indifference. Bar Associations convene, and some member inveighs against it, to the accompaniment of thunders of applause of the "Hit 'em agin" kind. The Association weightily resolves and roundly denounces. A committee is solemnly appointed, which, surveying the magnitude of the task of recommending any remedy, contents itself with more renewed denunciation, or,-just as well,promptly forgets all about it, and its members engage again in their usual business.

The bar declares it to be the duty of the people to cure the evil. The people reply that it is the peculiar province and function of the bar. The bench,--not being an insurgent, and being quite able to stand it, if the rest can-looks on with dignified complacency, keeps on the even tenor of its more or less leisurely way, and does the best it can. Everybody agrees that the situation is exasperating and deplorable, but nobody does anything, few give it thought, and yet, all hope for better things. It is my purpose to go farther than mere denunciation, to indulge in something more than mere general criticism,-in short, to suggest affirmative action,-to propose remedies.

The first question a client asks his lawyer, after he has been assured that he has a cause of action or a defense, is-"How long will it take?" He has heard about the delay in law and fears it. He is told that, -"The case ought to be reached next term, if nothing happens." And usually, if the case is contested at all, something does happen; and the thing that happens is not the trial and decision of the cause, but the operation of the machinery of delay. If both lawyers think that they can win on the merits, a trial may be reached in four or five months after the case is commenced, and even, in rare cases, in less time than that. But, if either party fears defeat on the merits, and his only hope is to stave off the day of judgment, the case may be tried in six, or nine months or a year after it is commenced. Finally, the case is tried, and, after a time,-a just judgment is delivered. Then, the defeated litigant has time enough to go to Europe and back a dozen times in which to decide whether it will suit his purpose to obtain the additional delay insured by filing a transcript in the Supreme Court. The prospect of another two years' immunity from justice is so inviting that he decides to appeal. Then the record goes to the Supreme Court and the clerk marks it "FILED," and puts it

away with 1500 fellow-lodgers in his musty archives, where in Nebraska and possibly a few other states, it sleeps undisturbed for two years. Everybody, except the parties, forgets about it. The appellant is secure from justice. The appellee rages, but in vain. Finally, when the case appears on the Supreme Court calendar, counsel resurrect this record, go over the case again, refresh their memories, and, in short, do all or most of the work over again. The judgment is affirmed. The seeker for justice is disgusted, and the conspirer for delay has gained his point.

Rather than invite such a calamity, is it any wonder that clients elect to suffer commercial piracy? I think that they are wise in concluding that it is better to be robbed by a private citizen, who can probably be reached in some way or other, than to be robbed by the legal machinery of delay that is unnecessary. What sensible man is there today who will submit any considerable part of his fortune to the certain delay of litigation, save from imperative necessity? To such a man "to go to law" means the practical suspension of his accustomed business activities for three years, and men will not do it unless under the gravest compulsion. The result is that the citizen's wrongs go unredressed, his rights unprotected and he himself is made the prey of the unscrupulous. And the lawyer gets no big fee for merely informing the client.or near-client.-that the machinery of justice of which he is in charge is so unwieldly that it is wholly inadequate to the situation.

The situation can be changed. The evil can be remedied. Other states have done it.

Some time ago the writer began investigating into the causes of delay in litigation, by corresponding with lawyers in about fourteen states of the union, and we found the main causes to be as follows:

1. Motions and demurrers-That is to say, contests over the papers, instead of

over the case,-and lack of opportunity to present and lack of prompt decision upon the questions presented by them.

2. Excessive periods of time within which to do certain acts in the course of litigation, granted by the Court or provided in the statute.

3. Numerical excess of judges of Courts of last resort required to hear a cause or to pronounce a decision.

4. Procrastination, indifference and laziness of judges and lawyers, and too much so-called "professional courtesy" between the bench and bar.

We will take these up in their order.

1.

First of demurrers and motions incident to the making up of the issues in a case. And here I except from consideration any demurrer upon which a party "stands," for that is, in effect, an answer. I refer to those demurrers upon the overruling of which, the party interposing them, answers over. The demurrer to a pleading challenges the legal sufficiency of the paper case, and not the real case. It does not question the sufficiency of the facts, but of the pleader's statement of the facts. It is, therefore, a paper contest,-pure and simple. The common defense of a demurrer is that a party ought not be compelled to make answer until there is a cause of action or ground of defense stated against him. You might as well say that a man ought not be brought into Court at all, unless judgment can be recovered against him. In actual practice.-no matter what the theories may be,-in actual practice, it is very well known that, if a demurrer would be good, it is seldom interposed, the party who might very appropriately interpose it preferring to have his adversary go to trial on a defective pleading than to educate him into filing a good one. The result is that, when a demurrer is filed, it is for the express purpose of delaying a trial on the merits.

As to general demurrers especially, there is no real need of them, for the question of the legal sufficiency of cause of action or ground of defense is always present in every case, anyhow. And it cannot be strengthened by a written demurrer, or waived by failure to file one. It, therefore, has no legitimate place in the making up of the issues. Yet, it is a common occurrence for the time of courts to be taken up hearing arguments upon demurrers, and deciding them, when it is perfectly well known that, if overruled, the party will answer over, and, if sustained, the party whose pleading is held held defective will amend. And the Court will give such a time within which to answer or amend as will carry the case over the term, thereby causing a delay of three or four months. And that is not all. Demurrers may be filed to amended pleadings and the same nauseating performance gone over again ad infinitum. The time of the paid judicial officers of the state and the time of the litigants is consumed in determining whether the pleader is a good pleader or a bad one; a question which neither the state nor the litigant is concerned about at all.

I do not mean that there should be no opportunity to question the legal sufficiency of a pleading of fact. What I do mean is that the possibility of employing the demurrer as an instrument of delay should be removed, and that the time for filing amended pleadings should be so limited as not to result in successive continuances; and that can be easily done. In the Province of Ontario, no demurrer to the pleadings is allowed except an oral demurrer interposed at the trial, and a ruling upon it is generally an adjudication of the case. The party whose pleading is held defective has one locus poenitentiae, viz: He may dismiss, if he is the plaintiff, and begin over again; and, if the defendant, he may amend instanter, if the proposed amendment does not delay the trial. The judge has a cer

tain discretion in the matter. The written demurrer to petition or answer ought to be abolished altogether, as the new Federal Equity Rules provide.

Motions to strike parts of pleadings of fact, and to strike the entire pleading from the files and motions to amplify pleadings furnish another fruitful field of operations for the delay man. For motions to strike there is seldom very little, if any, excuse. Redundant and scandalous matter in a pleading may be offensive to the fine sensibilities of the careful pleader, but it is rare, indeed, that they do him substantial harm Such averments are robbed of their power for harm by the Court eliminating them. from the jury's consideration, excluding proof upon them, or in disregarding them in making up his own decision, if it be an equity suit. And there can be no great difficulty in answering them as long as we have the general denial. Motions to strike have to do with the trifling and even frivolous things, and should never be permitted to take the place of a pleading of fact required by the statute; and, in the bill I have drafted, hereafter to be noticed, it is provided that no motion to strike shall ever take the place of answer or reply, or operate to save a party from default.

Motions to require a more definite and specific statement stand on an entirely different footing. Undeniably, a party has a right to have an explicit statement of the cause or defense against him, so that he may be fully prepared to meet it. The bill before referred to provides that such motions shall be filed a week in advance, and other bills provide for its speedy disposition. These These bills do not undertake to abolish either of these motions, but they do provide for a speedy disposition of them, and limit the time within which defective pleading may be amended. As the matter now stands, it is quite possible for a party to move for an amplified statement, and when the motion is complied with and the matter sought is pleaded, the party who

sought it may file another motion to strike out what he first demanded. Of course, any judge would instantly, I hope, overrule such a motion to strike, but the judge cannot be there at all times to make his ruling, and, as long as a motion to strike can take the place of the required pleading, it will be an effective instrument for delay. Under the present condition, the battle of the motions and demurrers goes merrily on to the absolute obstruction of justice. It is a sham battle. Nobody reaps any real victory or suffers any decisive defeat. The cause itself that the parties came into Court to litigate, remains untried and undecided. The whole function of demurrers and motions to strike is a play for position, or to secure unwarranted delay. And, after they are ruled upon, the court often gives the party time enough to amend or plead to carry the cause over the term, and does it, too, with a self-satisfied smile of complacency on his face, and in the name, forsooth, of justice. I devote considerable time to this matter of motions and demurrers, because they are the chief cause of delay in our trial courts,-the "bull wheels" in the machinery of delay.

Now, I suggest four (4) bills to eliminate this cause of delay. They are:

1. A bill to abolish demurrers, and to provide that all matters heretofore presentable by them shall be presented in the answer or reply; and providing that they must be presented at Rules Sessions fifteen days before the convening of the term; and limiting the time within which defective pleadings may be amended to twenty-four

hours.

This prevents the demurrer from being employed to take the place of an answer or reply to affirmative matter pleaded in answer. It removes one of the instruments of delay, and yet takes away no right. If your defense is that the petition does not state facts sufficient to constitute a cause of action, say so, and that will be your answer. If your defense is legal insuf

ficiency of the pleading you are answering, and, also, that the facts averred in the pleading are untrue, or a part of them are untrue, put it in your answer. The bill provides when and how the legal questions shall be taken up and disposed of. The idea is to get the case at issue. Aside from the specific requirements of this bill, its tendency will be to induce the pleader to plead on the merits.

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2. A bill requiring that motions. strike and motions to amplify shall be filed one week in advance of the time required for the pleading of fact; that motions to strike shall never take the place of answer or reply, and shall never operate to save a party from default; and limiting the time. to be granted a party for amending a defective pleading, when the motion is sustained, or answering, if overruled.

3. A bill to require the District Judges to hold Rules Sessions fifteen days before the first day of each term, and to call up all legal objections presented in answer or reply, and all motions and limiting the time, as before, for time in which to plead.

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4. A bill providing that motions strike or amplify or directed at pleadings in any way, filed thirty days or more before the Rules Session, may be submitted to District Judges anywhere in the district, by registered mail, and the judge's decision may be returned the same way; and limiting the time for decision, as near as may be, and providing five day's notice in writing to the party filing the motion, which notice shall state whether oral argument is to be made, and, if a brief, written argument or citation of authorities is to be presented, the notice shall contain a copy thereof, and that no argument, brief or citation shall be submitted to the judge upon such motion save that set forth in the notice. Proof oi the service of this notice must accompany the papers when they are transmitted to the Judge. This facilitates the presentation of ail motions speedily, and the result of it will be to discourage the filing of frivolous mo

tions. Provision is made limiting the time that may be given by the judge in which at party may plead.

I feel certain that, if these bills were enacted into law, nine-tenths of the delay incident to the making up of issues would be eliminated. They established such a "Rules Session" in the State of Kansas, and several lawyers in that state write me that it has facilitated the dispatch of business wonderfully. Governor Aldrich was kind enough to call my attention to the fact that a legislative committee of the state of Florida has been investigating into the best means of eliminating unnecessary delay in their state; and have made report of their conclusions. The chief features of their recommendations on this score are that any party may file any motion or demurrer, or other dilatory plea he chooses, but it must be accompanied by a pleading on the merits. Then all his dilatory pleas must be heard and disposed of at rules session or not at all before the trial. The fact that the pleading on the merits must accompany the dilatory plea robs it of its power for delay, and facilitates the making up of the issues. The chief difference between that idea and the one incorporated in my bill, in so far as it relates to demurrers, is that mine requires that the demurrer shall be included in the same paper, and theirs permit it being set forth in a different paper. The imperative requirement of either is that all dilatory pleas must be disposed of before the first day of each term. The establishment of a Rules Session brings the judge to the county seat where the case is pending and where the pleadings are. The provisions for submitting motions by mail send the pleadings to the judge. Together, they provide ample means for the submission of such matters.

If these words reach any trial judge whose desk (not his docket) is congested with demurrers and motions to strike, and he wants a way out of his difficulty, pending appropriate legislation, I refer him to a method adopted by one of the foremost and