changed or repealed, as it could be if it were
a legislative enactment and not a constitu-
tional provision. The gentleman from Balti-
more city (Mr. Daniel,) and the gentleman
from Howard (Mr. Sands,) have spoken about
the trial of these cases belore the court below.
Now a commission is issued, testimony is taken,
and written and submitted to the judge; the
parlies having a right to except to any ques-
tion they may consider irrelevant. The court
below decides upon that case, and then ilgoes
to the court of appeals on appeal, and they
decide whether the court below decided cor-
rectly or not upon those exceptions.
Now, under this amendment, how are cases
in equity to be tried in the court below? Are
we going to call witnesses up, and every instant
have disputes about the admissibility of
testimony, have exceptions taken, and then
have the recurd go up to the court of appeals,
just as if it were a common law case? Is that
the mode of proceeding that the gentleman
desires ?
Mr. SANDS. The testimony is to be taken
under this provision, before a court competent
to decide the competency of witnesses. Does
it not operate to the good of the party by
saving to him the cost of the immense record
that is made up before commissioners?
Mr. STIRLING. The record must go up any
way.
Mr. SANDS. It must be made up, I know.
But if the testimony is taken before a judge,
three-fourths of what is now upon the record
would never get there.
Mr. THOMAS. Suppose in an injunction case,
you go before a court and take testimony, and
the party against whom the injunction is is-
sued conceives that the injunction is not right-fully
issued, and you have to send up in the
recurd of the court of appeals the facts upon
which the court below acted, in order to ob-
tain a reversal of his judgment. You lose all the
time of the court below in taking down the
testimony in the injunction case, and putting
it in the record to go up to the court of ap-
peals.
Mr. SANDS. My idea is to provide that tes-
timony shall be taken before a court compe-
tent to judge of the relevancy of the testi-
mony.
The PRESIDENT. The court would have to
lit all the year.
Mr. SANDS. That may be an objection; but
certainly the other objections which have been
made here are not objections.
Mr. JONES, of Somerset. The purpose which
the gentleman (Mr. Sands) has in view of
abridging the testimony, in saving the consumption
of time by this mode, cannot be effected,
where a party is disposed to prolong
it factiuously. A lawyer upon the one side or
the other will object to every question, and
will take exceptions if overruled; will argue
before the judge the question of the admissi-
bility of each question, and the judge would |
be bound to bear him, or if he did not it
would be discourteous. And then when the
judge decided against him, he would take a
bill of exceptions. Therefore so far from
abridging the record, I think it would lead to
an almost interminable consumption of time,
where the disposition is to prolong; and as
the President has well suggested, it would re-
quire the judge to sit the whole year, and if the
judge hears the testimony, you would have to
have a clerk to take down all the testimony.
if irrelevant testimony is taken down before
the commissioner, the lawyer knows it would
be ruled out by the court ?
Mr. SANDS. I admit that there is something
in the objection in regard to occupying the
time of the judge in taking testimony.—
But I ask my friend this: Does he believe that
any man who had a decent reward for his own
standing in court, would before any judge
put such questions as you find put by the hun-
dred before a commissioner.
Mr, JONES, of Somerset. If he is paid for
it, I reckon he would put all the questions
his client desires.
Mr, SANDS. I would not.
Mr. THRUSTON. Any radical change of this
.kind is a very dangerous thing, it there are
any defects in our present system, it is per-
fectly competent for the legislature to change
it. it is a dangerous experiment, I think, to
change almost the whole equity records of the
State.
Mr. STOCKBRIDGE. I am greatly in favor of
every proposition which can expedite busi-
ness in courts of law or equity. For these
delays have existed ever since the time of
Shakespeare, who considered the haw's de-
lays one of the things which would justify
suicide; and I do not think it has improved
since. But I do not think that this amend-
ment will accomplish the object sought.—
There are suits in equity and suits all law,
begun in the time of our grandfathers,
which are not decided yet. I think tire law
as it now stands affords greater facilities for
suits in equity than for cases at Law; provid-
ed the attorneys are disposed to press their
cause . Our code now says, in reference to
chancery matters:
With a view to the speedy execution and
return of commissions to take testimony, the
court, or any judge thereof, shall prescribe
such rules as the nature of the case may re-
quire."
The courts have acted upon that, and have
prescribed rules wherever there is a disposi-
tion to delay trivially. It is the easiest thing
in the world for a solicitor in a cause to ob-
tain a special rule from the judge requiring
the commission to return in so many days.
it is an every day practice with solicitors who
press their causes.
Suppose you adopt the system proposed by
this amendment, and I am disposed to fight
hi time. 13 it not easy enough for me to |
