Queen Anne's, (Mr. Spencer's,) but would now
reconsider it. It is very certain that it would
add to the costs of equity suits, for persons living
at remote parts of the State to be brought to
the place of trial, and kept there at a per diem
Why, he (Mr. B.) would say that a man who
had a small chancery case would rather give it
up than incur the expenses of summoning his
witnesses from various parts of the State.—
Whereas great convenience was experienced
and cheapness consulted by sending a commission
to any quarter of the State that might be
necessary. The Court of Appeals had decided
that the Commissioner need not appoint a clerk
and in that event many witnesses could be examined
at a cost of only $4 a day. He agreed
with the gentleman from Queen Anne's, that
there was a great advantage in viva voce exam-
ination of witnesses. But if the Chancellor had
to try facts, as a jury should try them, then his
opinion on the facts should be reviewed in the
Appellate Court as well as on the law. To
carry out his argument, the gentleman from
Queen Anne's should bring his witnesses before
the Court of Appeals in order that the judges
in the last resort should see their manner as
well as the intelligence of the witnesses. Oth-
erwise, if the court above reads the evidence
reduced to writing then all the advantage of ore
tenus evidence is lost in the Appellate Court.
If you bring before the Court of Appeals the
testimony of a man who had willfully and mani-
festly lied, as apparent to the court below from
his demeanor, his testimony in writing might
appear so clear to the eyes of the Appellate
Court as to be almost unimpeachable. There-
fore the gentleman's (Mr. Spencer's) plan did
not accomplish his object. It would allow the
Chancellor to see the witnesses and to judge of
their demeanor, but the Appellate Court would
be denied this privilege and might therefore re-
verse a decision based on personal observation
of the manner of the witnesses. Now, in a bill
of exceptions you did not take them for the pur-
pose of getting an opinion in the court above on
the facts, but only on the law arising on the
facts. So that he (Mr. B.) would say the whole
plan of the gentleman from Queen Anne's was
most expensive, and would not have the elect
desired. And, therefore, it seemed to him that
the gentleman did not carry out his proposition
far enough to accomplish his object. Now, it
appeared to him—and he was indebted to the
gentleman from Cecil (Mr. McLane) for the intimation
—that the plan adopted in the State of
Delaware was a good one. It was that the
Chancellor should never try a question of fact,
but whenever there was a controversy as to the
facts in his court, he should imperatively order
an issue. He might do it now. The power is
now discretionary in this State, and it is only
exercised in very important cases, and where
the evidence was involved. But it seemed to
him (Mr. B.) the only way to settle this matter
was to let the question be tried by a jury. If
the gentleman would, therefore, incorporate a
provision like that of the law of Delaware he
should vote for the proposition. |
Mr. BROWN moved the previous question, and
being seconded,
The question Was propounded,
Will the Convention reconsider their vote adopt-
ing the amendment offered by Mr. Spencer, as the
11th section of the report
Mr. SPENCER demanded the yeas and nays,
which being ordered and taken, resulted as follows:
Affirmative—Messrs. Chapman, (President,)
Morgan, Blakistone, Dent, Hopewell, Ricaud,
Chambers of Kent, Mitchell, Donaldson, Dorsey,
Wells, Randall, Kent, Sellman, Brent of Charles,
Howard, John Dennis, James U. Dennis, Cris-
field, Williams, Hicks, Goldsborough, Eccleston,
Chambers of Cecil, Miller, Bowling, Grason,
Gaither, Biser, Annan, Gwinn, Brent of Balti-
more city, Schley, Neill, John Newcomer, Har-
bine, Davis, Holliday, Slicer, Smith, Parke,
Shower, and Brown—43.
Negative — Messrs. Lee, Bond, Buchanan,
Welch, Lloyd, Dickinson, Dashiell, Spencer,
Wright, McMaster, Hearn, Fooks, Jacobs, Mc-
Henry, Nelson, Carter, Thawley, Stewart of
Baltimore city, Sherwood of Baltimore city,
Fiery, Michael Newcomer, Brewer, Anderson,
and Cockey—24.
So the Convention reconsidered their vote on
said article.
The question then recurred on the adoption of
the article.
Mr. SCHLEY moved the previous question,
which was seconded, and the main question or-
dered, viz: the adoption of the article.
Mr. SPENCER asked the yeas and nays, which
were ordered, and being taken, were as follows:
Affirmative—Messrs. Buchanan, Welch, Lloyd,
Dickinson, Dashiell, Spencer, Wright, McMas-
ter, Hearn, Fooks, Jacobs, McHenry, Carter,
Thawley, Stewart of Baltimore city, Sherwood
of Baltimore city, Fiery, Michael Newcomer,
Brewer, Anderson, Holliday, Slicer, Cockey, and
Brown—24.
Negative—Messrs. Chapman, (President,)
Morgan, Blakistone, Dent, Hopewell, Ricaud,
Lee, Chambers of Kent, Mitchell, Donaldson,
Dorsey, Wells, Randall, Sellman, Brent of
Charles, Howard, John Dennis, James U. Den-
nis, Crisfield, Williams, Hicks, Hodson, Golds-
borough, Miller, McLane, Bowling, Grason,
Gaither, Biser, Annan, Gwinn, Brent of Balti-
more city, Schley, Neill, John Newcomer, Har-
bine, Davis, Smith, Parke, Shower—41.
So the amendment as the 11th section was re-
jected.
Mr. BROWN. I ask the Convention to postpone,
fur a few moments, the subject under considera-
tion, in order that I may move a rule that motions
to postpone indefinitely shall be decided without
debate
Mr. J. U. DENNIS. Does it not require one
day's previous notice to change a rule of the
Convention?
The PRESIDENT. This is a new rule, and does
not change any existing rule adopted by the
Convention.
Mr. J. U. DENNIS. It changes what has been
the practice of this body.
Mr. CHAMBERS, of Kent. I suggest to the |
