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 A Practical Program of Procedural Reform

455

real interest in meeting his adversary's

or whom, in case of constitutionality,

case."

the court by general rule or otherwise

This principle has been approved twice by the American Bar Association

may determine to be entitled to notice, and to present the question of construc

by more than a two-thirds majority of those voting and was embodied in the recent proposals of the judges of Cook County.‘8

tion or constitutionality to the court without the ﬁction of a "test case." An excellent example of the possibilities

X. The jurisdiction to prevent con troversy by construction of instruments should be extended to all cases upon deeds, wills, contracts or other instruments upon

which questions of construction arise or the rights of parties are doubtful; it should also be extended to questions of statutory construction and constitutionality by a simple proceeding analogous to the "originating summons" of the English practice.

of such a jurisdiction is furnished by the English practice of "originating summons" under Order 540. That

order provides that "any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the deter

mination of any question of construction arising under the instrument and fora declaration of the rights of the persons

interested." The wide scope of this practice has obvious advantages in preventing long and expensive litigation.

So long as only questions for the court are involved and there is nothing calling for a jury, the jurisdiction to

construe instruments ought not to be conﬁned to directions to trustees and cases where equitable interests are in volved. The preventive jurisdiction should be extended at this point. It should not be necessary to break a

contract in order to ascertain what it means. It should not be necessary for

But its simplicity of form is also note worthy. Instead of the formal pleadings of a suit for construction, the summons

reads : "Let within eight days after ser vice of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons, which is

issued upon the application of ,who claims to be [state the nature of the claim] for the determination of the following ques tions: [State the questions.]"

a law-abiding citizen to break the law

in order to ﬁnd out what are his duties or to ascertain the constitutionality of a statute. It ought not to be that unless a case for a bill of peace can be

made, often presenting the unseemly spectacle of one department of the government tying up another, one must submit to an unconstitutional

XI. An appeal should be treated as a motion for a rehearing or new trial or for vacation or modiﬁcation of the order or judgment complained of, as the cause may require, before another tribunal. At common law, after trial at nisi

prius, the cause was heard by the court statute or else to an arrest.

It should

be possible to notify all persons who are “7 Cf. Wigmore, Pocket Code of Evidence. p. xi and rule 23; R rt of Committee on Sim liﬁcation of Procedure 0 Association of the Bar 0 the City of New York, pp. 7-8; Kansas Rev. Code Civ. Proc., 5307; Rep. Am. Bar Ass'n, xxxiii, 542-546; paper of Everett P. Wheeler, 21 Green Bag, 57; 4 ll. Law Rev., 505-506. ‘a 3 Ill. Law Rev., 586.

in bank upon rule for a new trial or motion in arrest or for judgment non

obstante.

In that simple proceeding

and not in the writ of error, an inde pendent proceeding of a formal and technical character, is the true analogy

for appellate procedure.

Unhappily.