theft have found it much cheaper for them-
selves to refund the loss to the parties who
have lost by the theft, than to follow the
causes to the places to which they have been
removed, and consequently cases have been
informally dropped and thus the ends of jus-
tice have been defeated.
This section is an exception to the general
power of removal on the naked affidavit of
the parties. It was thought wise also to pro-
vide that parties should in some way satisfy
the court in making the application that it
was not done to delay the cause and run
away from the witnesses, or the person in
whose hands the cause was placed; so that
the court might see that there was some
ground of action or defence, as the case might
be. I do not see that it can operate any hard-
ship to any one. It is true the objection
may be to the court that is to try the case. I
suppose an objection of that nature, stated in
any court, would insure instantly the remo-
val of the case. If any man who bad acause
on trial felt that the personal relations be-
tween himself and the judge were such that
he could not have a fair trial before him, and
that was stated to the court, then I suppose
that no judge within the State, or whom we
are likely to have in the State, would retain
jurisdiction of the cause and proceed to the
trial. In a case of that sort an order for re-
moval would follow of course, and in other
cases I am satisfied that the ends of justice
would be attained by this section.
Mr. STIRLING. This section undoubtedly
involves a matter of very grave importance,
and whatever is done in regard to this matter
ought to done very deliberately. There is no
doubt that, as my colleague (Mr. Stockbridge)
has said, there have been gross abuses grow-
ing out of this system. But at the same time
it is a system which has been in force in this
State for a very long period of time, and like
most things that have some value they are
the very things that are abused. I have seen
men in court, just as their causes were being
called for trial, move for an order of removal
with no other object than to get rid of justice.
It wag not because they were allowed to do it
on simple affidavit, so much as because the
disposition to extend this right of removal
has been carried so far as to lead to the abuses
which have grown up under it. The laws of
the State gives the party the right to move
for a removal at the first term of the court;
and the legislature has given the right still
further to do so at any subsequent session of
the court. The difficulty is that there is no
time fixed, no limit. If the judges of the
court were authorized to prescribe rules in re-
gard to this matter, so that they could compel
a man to decide within a certain time after
his pleading, the great evil would be remedied.
The legislature of 1862 was importuned
.principally through the instrumentality of
the judge of the criminal court and myself to |
pass a law to alter this thing, and they did
intend to do it; but the law was so botched
up before it got through the« legislature that
the matter really stood as it was before. The
difficulty arises from allowing a party to re-
move his cause at a second term of the court.
This section would abolish the right altogeth-
er hereafter. A criminal cannot show why
it is that he cannot have a fair trial, for to do
so he must make known his ground of de-
fence; and in a civil case it cannot be done.
it rests upon matters which a man cannot see,
but very often cannot prove. Take a man
who is to be tried in some county for a criminal
offence. His counsel knows, and he him-
self knows that he cannot have a fair trial.—
His offence has prejudiced every man in the
county, and each one of those men, unless he
is an extraordinary man will carry those
prejudices into the jury-box. The judge
sympathizes with his fellow citizens in the
county. Innocent men have been acquitted
in this State solely because they had the
power to have their causes removed. Now
1 do not see how a man is to show that
he has a good defence. This does not say
that he is to swear to any affidavit, but that
he must make it satisfactorily appear to the
court,
•Mr. THRUSTON. Suppose you insert the
words " by the affidavit, of the party," after
the word "shall," so that it shall read " when-
ever any party, &c., shall by the affidavit of
the party make it satisfactorily appear to the
court," &c. In that way it would be neces-
sary for the party to set out what his case
was, and his ground of action upon oath; and
the court could judge whether they were such
grounds of defence as were reasonable and
proper. Suppose the section were to read in
this way, "shall make it satisfactorily appear
by his affidavit to the court that such a party
has a substantial ground of action or defence,"
&c. Then the affidavit of the party would be
all that the court would require, in regard
to the defence, it would be necessary for me
to set out in the affidavit only so far as to
show that he had a substantial defence. 1
think that would meet the objection of the
gentleman, and would avoid some of the
abuses to which the system is liable.
Mr, STIRLING. I think this amendment is
absolutely indispensable, unless you are to
change the whole right of removal. I would
rather leave this section outentirely. If you
put it in here the legislature cannot restrict
it. But leave the law to stand as it is, you
will leave it subject to such revision as the
legislature may deem necessary. I think the
legislature will be disposed to restrict this
right. But if you put it in as it stands in this
section you shut the door to fraud, and to
everything else also.
Some time ago I had a civil case against a
corporation. The president of the corpora-
tion made oath that he could not have a fair |
