I think, that instead of the expense being di-
minished, it has been vastly increased by
their attempts at reforming law proceedings.
The cost even of collecting a promissory note
of $120 or $130 there, would amount to about
double the sum recovered.
It seems to me that the difficulty in adopt-
ing this provision is this: In our State
equity and common law jurisdictions have
always been kept separate and distinct, and
gentlemen forget that it is at last the court
of appeals which in equity cases is to
decide upon facts; and these facts must
appear before that court upon the record.
There may be some difficulty, and there
is, in the court below in having testi-
mony taken down before the witnesses;
and the witnesses have to appear before the
judge; and that testimony must in some way
or other beembodied in the record and sub-
mitted to the appellate tribunal, because the
court of appeals under our system of procedure,
when acting upon equity causes, is both
judge and jury. That court must have the
facts before them, in order to review the de-
cision of the judge below in reference to the
facts.. Now, bow is that to be brought
about? Are we to go into the trial of a
cause in equity, and raise exception after ex-
ception before the judge as to the competency
of a witness, and have the testimony written
down word for word, as it was delivered, and
then have it embodied in the record, and
sent up in the shape of exceptions as we do
in a case at common law? it seems to me
much simpler to have the testimony taken
first before the commissioner, and then sub-
mitted to the judge, and then the same tes-
timony, in the same form, submitted to the
appellate court.
Now in reference to delays, that has been
a charge against equity proceedings from
time immemorial. That is not, however,
it seems to me, an objection that should
prevail. It is an objection which is not
true in point of fact. I have had some
experience in reference, to equity causes, and
have had some knowledge of equity causes
coming into the appellate court, and so far
as the records go of cases that come up to
that appellate court and are decided there, I
think I can safely say they have not been
of so long standing as cases at common law
Mr, THRUSTON. I know there are some
evils in connection with our present system.
But my objection to this amendment is that
I think it would be extremely dangerous for us
to attempt to make this change without seeing
what the effect a ill be. The legislature has
power to change it if necessary, and they can
look into it and see how far it is necessary lo
change the equity system. Now it is very
common, in applying for an injunction affecting
great public interests, .interests of large
bodies of people, for the judges to grant this
injunction upon terms; that is to say, with |
leave to move for a dissolution of the injunc-
tion upon five days' notice, and commission
the parties in interest to take testimony.
Here is an injunction upon stocks in certain
manufactures: the judge says—1 will grant
the injunction upon the case stated upon the
bill, but with leave to the other party to
move for a dissolution upon five or ten days'
notice, with leave to parties to take testi-
mony, Suppose a case arises when the
judge is absent. Is it for him to leave the
county he may be in, and go there to take
evidence? Or when there is a vacation of
the court, when the judge is entirely occupied
in determining how to decide certain ques-
tions? This is bat one difficulty,
There are many difficulties that occur to
my mind, showing that it is not proper to in-
troduce such a change as this into the law,
without providing in other ways for its effects.
Judges will not sit upon the bench all day,
and then sit up all night to take evidence in
a case; and unless you can provide some mode
for evidence to be taken at the time, injunc-
tions of this character would be carried over
until the county court sits for the testimony to
be taken in court. I think it would be exceedingly
dangerous to make any such change as ,
this in this way, without seeing its effects,
without providing for those effects, as they
may affect our system of equity jurisdic-
tion. I am therefore opposed to this amend-
ment as a dangerous amendment.
The question being taken upon the amendment
of Mr. DANIEL, it was rejected.
TRIAL OF CAUSES, ETC.
Mr. THURSTON, I suppose it is the wish of
this body to perfect this report as we go along,
if it can be done. The ninth section was
passed over this morning, because no amend-
ment was proposed that covered the whole
case. Since that period I have prepared an
amendment, which I think will not be object-
ed to. I would, therefore, ask the convention
to take up section nine, for the purpose of en-
abling me to offer what is in effect a substi-
tute for the whole section, which I think will
suit the views of all parties.
The question being taken, the motion was
agreed to.
Section nine was then read as follows :
"Sec. &. The legislature shall provide for
the trial of causes in case of the disqualifica-
tion of all of the judges of the circuit, but the
parties to any cause may, by consent, ap-
point a proper person to try said cause, and
may try any cause before the court without
the intervention of a jury."
The pending question was upon the motion
of Mr.NEGLEY, to strike out the words "all
of the judges" and insert " any judge."
Mr NEGLEY withdrew his amendment.
Mr. THRUSTON. I now move to strike out
all after the word "the," in the first line, and
insert: |
