"General assembly shall provide for the
trial of causes in case of the disqualification
of all the judges of the circuit to hear and de-
termine the same, but in case of such disqual-
ification, the parties thereto may by consent
appoint a person to try the same; and the par-
ties to any cause may submit the same to the
court for determination without the aid of a
jury."
That permits parties to submit their causes
to the court without the intervention of a ju-
ry, and also provides for the case of the dis-
qualification of the judge, and it does not
mix up tire two subjects which were intended
to be included in this.- section.
Mr. SANDS. I would just remark that the
proposition submitted by the gentleman from
Allegany (Mr. Thruston) proceeds upon the
supposition that we have already determined
to have a plurality of judges in the several
circuits. Now I do not think from what I
know of the temper of the house, that that is
likely to be tire prevailing sentiment here.—
The language of the amendment us read cer-
tainly implies that we have decided in favor
of a plurality of judges in the circuit. This
says "in case of the disqualification of all the
judges of the circuit," &c. Now from what I
have learned by conversation with other mem-
bers, I think it is pretty well determined that
we are to have lout a single judge in the cir-
cuit, and perhaps a new districting' of the
State.
Mr. THURSTON. The language I have. used
will cover the case whether there are one,
two, or three judges. If there is but one
judge be will be " all of the judges of the cir-
cuit."
Mr. STIRLING. The committee on revision
can alter it if necessary.
Mr. THRUSTON, It will be construed to
mean but one judge, if there is but one.
The question being taken upon the amend-
ment of Mr. THRUSTON, it was adopted.
No further amendment was offered to the
section. .
REMOVAL OF CAUSES.
Section ten was then read is follows :
Sec. 10. The judge or judges of any court
of this State, except the court of appeals, may
order and direct the record of proceedings in
any suit or action, issue or petition, presentment
or indictment pending in such court, to
be transmitted to some other court in the
same or an adjoining circuit having jurisdic-
tion in such causes, whenever any party to
such cause, or the counsel of any party, shall
illake it satisfactorily appear to the court that
such party has a substantial ground of ac-
tion or defence, and cannot have a fair and
impartial trial in the court in which such suit
or action, issue or petition, presentment or
indictment is pending; and the general assem-
bly shall make such modifications of existing |
law as may be necessary to regulate and give
force to this provision.
Mr. STIRLING, I move to strike out the
words "has asubstantial ground of action
or defence, and." It will then read—"make
it satisfactorily appear to the court that such
party cannot have a fair and impartial trial
in the court," etc. I am not prepared to say
whether I like this section or not. It restricts
the right of removal which now exists, and
requires a party to satisfy the court that he
cannot have a fair and impartial trial there,
before he can remove his cause. He can now
remove it upon his own affidavit, and I also
cannot see how you should require a criminal '
to disclose his defence, in order to satisfy the
court that he has a good ground of action.
Mr. STOCKBRIDGE, I greatly prefer the sec-
tion as it stands, to the section as it will
stand if the amendment be made which my
colleague (Mr. Stirling) has proposed. No
person who is at all familiar with the course
of proceedings in this State for the last fifteen
years, but knows that one of the greatest
abuses which has grown up in our courts,
has been the constant removal of causes with-
out any reason, and for the purpose of pro-
moting delay, and the promoting the ends of
justice from being accomplished. Civil causes
and criminal causes alike have been re-
moved upon the affidavits of parties, and the
records of the State, I am sorry to say, will
show more utterly reckless and unconsciona-
ble swearing in that respect, I think, than in
any other. It is an every-day practice for
persona to go into court professing a readiness
for trial, in criminal cases and in civil cages.
But if they find the adverse party there with
their witnesses ready to proceed, then they
make affidavit that they cannot have a fair
trial, and ask that it be removed, in the hope
that, being sent to some county at some dis-
tance, ten, twenty, forty or fifty miles away,
the witnesses would not follow; that the ad-
verse party will be worried out. it has
often happened in criminal cases, when the
State was represented in one county by an
able district attorney, and indifferently repre-
sented in the adjoining county, that they
have sought to avoid an able prosecution
against them, by putting it into the hands of
a different State's attorney, who being separa-
ted from the witnesses, probably never
seeing them until the cause is ready for trial;
and then perhaps being compelled to go into
court with but a part of the witnesses in the
cause. I know that the court in many coun-
ties have used great efforts to procure the
attendance of witnesses, and required them to
follow parties where the causes have been
removed. The removal of the cause often
operates, in the first instance, a long post-
ponement of the cause. Then after the post-
ponement has continued, witnesses must
make a long and expensive journey. And
sometimes witnesses to a small matter of |
