all and singular the powers, authorities and ju-
risdiction of the said court; and from any final
order, judgment or decree of the Register of
Wills, there shall be a right of appeal, under
such regulations as may be provided by law, to
the judge of the orphans' court; and the said
judge shall have the matter of said appeal de
novo, and decide according to the equity and
right of the matter. From any final order,
judgment or decree of the said circuit judge,
sitting as a judge of the orphans' court, there
shall be a right of appeal to the court of appeals,
as now or hereafter may be provided by law."
The PRESIDENT said that, under the 22d rule,
as it had been amended, it was not in order to
move a reconsideration a second time.
Mr. SPENCER. The first proposition is that in
chancery testimony shall hereafter be taken ora
tenus. The 2d is that the legislature shall make
provision for the sale of estates by decree through
the sheriff of the county. The third is that in
all matters of set off or account in bar, the jury
shall not stop half way, but shall consider the
whole merits of the case. I understand that it
has been objected to by certain gentlemen in
this Convention, that these are matters which
should be left to the legislature. It has been
the great object of the reformers not to leave
these matters to the legislature. When such
matters have been presented to the legislature,
it has been said that the legislature could not be
trusted with them, and that they should be left
for a Convention. They have been left for a
long time to the Legislature, but they have never
remedied the evil. Now that we have a Con-
vention, we are told that the Convention must
not remedy the evil, but must leave it to the
Legislature. I leave the argument to go for
what it is worth. I want to know if it is not
one of the crying sins of this State that such an
enormous expense is incident to its chancery
business. Every commissioner must be paid $4
per diem, and every clerk $4 per diem; besides
which, the Chancellor does not see the wit-
nesses confronted with the parties. This I endeavor
to remedy by my first proposition.
The next proposition looks to the breaking
down of the enormous expense incident to sales
by private trusteeships. I understand that it
has been argued here that it will prevent men
from appointing their own trustees. Any man
can see at a glance that this is mere opposition
The proposition looks to nothing of the kind
It looks exclusively to cases where men have
died without appointing trustees, whenever the
interposition of the Chancellor becomes necessary
to direct the sale of the estate. The effect
will be, that it will not cost half as much to settle
estates, in the first place; and in the next
place, that lawyers will have the interests of
their clients in view to prevent their estate
from being sold where it is not necessary. Now
the interest of the lawyer is to get a decree for
the sale of the whole estate, when perhaps the
sale of a small portion of it would be all that
was necessary. If you adopt the proposition
where hundreds of acres have been sold hereto-
fore, fifty acres will not be sold hereafter. |
It is said also that a sheriff cannot give bonds.
The Treasurer of the State gives bonds for all
the finances of the State which come into his
hands; and cannot the sheriff of a county who is
fit for the duty, give bonds for the faithful per-
formance of his duty as a sheriff?
The next proposition is, that in the trial of
cases of set off and account in bar, men shall not
be driven to cross action, and multiplication of
suits, as is now the case. I cannot understand
why, if a jury, as is now the law, can entertain a
question of set off, or account in bar, they
should not have the whole case before them, and
render justice between the parties, according to
the truth and merits of the case,
But besides, there are other great evils con-
nected with this subject, which this remedy will
correct. I will not enumerate them now,
The amendment was then read, as follows:
Sec. 11. No testimony on the equity side of
the county courts, shall be taken under a com-
mission, when it is within the reach of the pro-
cess of said courts, but the same proceedings
shall in all respects be had in taking testimony
as is now had on the law side of said courts.
Mr. SPENCER demanded the yeas and nays,
which were ordered, and being taken, resulted
ayes 41, nays 26; as follows:
Affirmative—Messrs. Ricaud, Lee, Buchanan,
Dickinson, Miller, McLane, Bowie, Sprigg, Mc-
Cubbin, Spencer, George, Wright, McMaster,
Hearn, Fooks, Jacobs, Johnson, Sappington,
McHenry, Magraw, Nelson, Thawley, Stewart,
of Baltimore city, Brent, of Baltimore city,
Sherwood, of Baltimore city, Ware, Schley,
Fiery, Michael Newcomer, Kilgour, Brewer,
Waters, Anderson, Weber, Holliday, Slicer,
Fitzpatrick, Smith, Parke, Cockey, and Brown
—41.
Negative—Messrs. Chapman, Pres't, Morgan,
Blakistone, Dent, Hopewell, Donaldson, Dor-
sey, Wells. Randall, Sellman, Lloyd, James U.
Dennis, Crisfield, Williams, Hicks, Hodson,
Goldsborough, Eccleston, Tuck, Thomas, Gai-
ther, Biser, Gwinn, John Newcomer, Harbine,
and Davis—26.
So the amendment was adopted as the 11th
section of the report.
The amendment offered by Mr. Spencer, as
the 13th section of the report, was then read, as
follows:
Sec. 12. Provision shall be made by the Le-
gislature to require the sheriffs of the respective
counties in this State, to sell and dispose of all
estates directed to be sold under all decrees
passed on the equity side of the said courts, and.
to execute all and every process in the said
courts, whether at law or equity, save and ex-
cepting the duties of auditor and clerk of said
courts, for which no greater commission or per
centage shall he allowed than is now allowed
him for sales at law.
Mr. SAPPINGTON demanded the yeas and nays,
which were ordered, and being taken, resulted
ayes 16, noes 53; as follows:
Affirmative—Messrs. Chapman, Pres't. Lee,
Hicks, Spencer, George, Wright, McMaster, |
