brigade inspectors, by the field officers of their respective br gades; major generals, brigadier generals, and commanding officers of regiments or separate battalions, shall appoint the s aff officers of their respective divisions, brigades, 1egiments or separate battalions. eration of the report of the committee on the judiciary department, which was on its second reading. The ninth section as follows, was under consideration: "S c. 9. The legislature shall provide for the trial of causes in case of the disqualificaSec. 5. The governor shall nominate and, tion of all of the judges of the circuit, but the with the consent of the Senate, appoint ma-parties to any cause may, by consent, ap jor generals, an adjutant general, and other point a proper person to try said cause, and mem ers of his staff, and their commissions may try any cause before the court without shall expire with the time for which the govthe intervention of a jury." ernor shal have been elected. Mr. NEGLEY. I move to strike out the Sec 6. The general assembly shall, by words "all of the judges," and insert the law, fix the time and manner of electing words "any judge," so that it shall read milia officers, and of certifying their elec-in case of the disqualification of any judge tion to the governor, who shall grant their of the circuit, "&c. commissions and determine their rank, when not fixed by law. Sec. 7. In case subalterns, captains or field officers shall refuse or neglect to make such elect ons, the governor shall have power to appo nt such officers, and to fill all vacancies caused by such reusal or neglect. Mr. SANDS. I think that amendment is entirely out of place as to time. We have not determined the main features in this report upon which will depend all these details. I think the convention will save a great deal of time by first acting upon the wards it will be easy to provide for the controlling features of this report and afterminutiæ. We have decided to have an elective system. Now let us determine the number of the judges; then the tenure of the Sec. 8. No commissioned officer shall be removed from office but by the sentence of a court-martial, or by the senate, on the recommendation of the goveruor, stating the grounds on which such removal is recom-office, and we can then very soon fill up the meud d. Sec. 9. In case the mode of election and appointment of militia officers hereby directed, shall not be found conducive to the improvement of the militia, the g neral as sembly may abolish the same, and provide by law for their appointment and removal. J. WICKARD. Mr. SMITH, of Worcester, renewed the motion that the convention take a recess. Mr. DANIEL called for the yeas and nays on the motion, and they, were ordered. The question being then taken, by yeas and nays, it resulted-ayes 26, nays 37-as fullows: Yeas-Messrs. Berry, of Baltimore county, Billingsley, Blacki-ton, Chambers, Crawford, Dail, Davis, of Charles, Davis, of Washington, Dent, Duvall, Harwood, Lausd de, Lee, Marbury, May hugh, Mitchell, Miller, Morgan, Murray, Parran, Peter, Purnell, Smith, of Worcester, Thomas, Thruston, Wickard-26. Nys-Messrs. Goldsborough, President; Abbot, Annan, Brown, Carter, Cunningham, Daniel, Earle, Ecker, Edelen, Galloway, Hopkins, Hopper, Jones, of Cecil, Jones, of Somerset, Keefer, Kennard, King, Markey, McComas, Mulikin Negley, Parker, Ridgely, Ro inette, Russe.1, Sands, Schley, Schlosser, Sm th, of Carroll, Smith, of Dorchester, Sting, Stockbridge, Swope, Sykes, Todd, details. If this amendment is adopted we may have to go back and strike it out. Mr. STIRLING. I hope this question will not be pressed, unless the house is going to investigate this subject. If we go on makng amendment after amendment without due consideration we may abolish the half of this report right off by incidental motions. This report provides for three judges in the circuit court. If we are going to decide that we are to have a one-judge system we ought to have our eyes opeu. I confess that I am now in favor of the one-judge system. On motion of Mr NEGLEY, The ninth section with the pending amendment was informally passed over. TAKING OF TESTIMONY. Mr. DANIEL. I move to insert after the ninth section, the following as an additional section: "Sec. 10. The testimony in equity cases shall be taken in like manner as in cases at law." I think this is the proper place for this section. I have copied it in exact terms from the New York system. I have done it because I believe it will save a great deal of time in the taking testimony by commission as is now practiced. Cases are frequently delayed day after day under the present system in this State. One party may be placed almost in the entire control of ano her party, who wishes to delay a case and put it off by the taking of testimony day after day before a commissioner. I call to mind now a case, The convention then resumed the consid- an important case of injunction, where the Wooden-37. to. The motion to take a recess was not agreed JUDICIARY DEPARTMENT. party who wished to delay it was allowed to take testimony before a commissioner. The case his been delayed in this way day after day, a great number of witnesses having been examined, until now that injunction has been lying for months and may lie for months louger before it can be tried. I think, therefore, it is better to have all witnesses come before the judge of the court of equity as they do at common law and give in their testimony there, so that the judge can observe the manner of the witness, bear his cross examination and keep out all improper questions and answers. I think that will not only promote justice, but will tend very much to save time. A case may be tried he fore the judge of a court of equity in one or two days, when the same case before a commis-ioner would occupy, in the taking of testimony, several weeks, if not months. vast expense. For instance, generally the prson appointed a comm ssioner to take testimony is not a professional man, and even if he is, he cannot decide, for he has not the power, upon the competency of a witness or the admissibility of his testimony, and no matter what irrelevant questions may be put to a witness all you can do is to except to them. And I have known many cases where parties who were irresponsible for the costs, in order to compel the opposing parties to compromise, have gone on increasing the record until the testimony in the case was almost as much as the Bible, and the ends of justice have been entirely defeated. You might go there day after day, have A, B, C, brought in as witnesses, of whom the most irrelevant questions will be asked. spun out to nterminable length, all written down and put upon record, you objecting to them on account of their utter irrelevancy, and the commissioner replying, "I am no judge of that matter; put it down, and the answer to it," and then you enter y ur exception. I say I have known many such instances. I call to mind now one cise where the purposes of justice were entirel. defeated, because the party defendant was advised by bis counsel that he better settle and pay the demand than have more eaten up in the costs of the suit; and he did so. And I say that it ought to be taken out of the power of parties thus to defeat the ends of justice. I had a case: A wife had petitioned for separation and alimony. The husband in that case is bound to pay the costs, no matter whether the petition is granted or not. I, myself, sate taking testimony in that case for weeks, and the record would make such a one as I do not suppose one man in a hundred gets to see. Then I had to advise the party, because he would have to make payment of the costs in the end, to make the best settlement he could. She did not care, her counsel did not care, which way the suit went as far as the costs were concerned, and it was evidently their purpose to force him to a settlement in this way. And our system at present toler Lawyers who are constantly employed in business will not find it possible, perhaps, to appoint more than one day in a week, sometimes not more than one day in two weeks to take testimony before the commissioner. And you must suit the convenience of both lawyers, and the witnesses have to be examined in this tedious way. Every word must be written down; every answer must be propo nded in writing; every question must be reduced to writing. One or two witnesses are examined in a day, or one but partially examined, and then comes an adjournment over for a week, perhaps two weeks. A long case may in this way occupy months where one of the parties is disposed to delay, or where it may not suit the convenience of parties to examine the witnesses right straight through, and the very same case in a court of equity might not occupy more than a day or two. And I think the advantage of seeing the witnesses while under examination, and the having the examination properly conducted, and rapidly conducted as in other cases, will lead to a saving of time and promote justice, besides being a saving of expense. In a suit at common law, say involving $500, a man brings bis witnesses before the court and has them ex-ates this abuse. amined at once before a jury. In equity a case involving the same amount requires you to go before a commissioner with all this delay, yet in the one case as in the other it may be important to have the witnesses before the tribunal that is to determine the case. think it will lessen the expense, be a saving of time, and promote justice, to adopt this provision. I find it in the constitution of New York, and I understand it has been found to be very beneficial in its effects there Mr. SANDS. I would like to call the earnest attention of the members of this body to the proposed amendment and the objects which it will really attain. I think there is no question but that our present system is deficient in this; that it causes great delay and If we adopt this amendment then the testimony is taken before the court, and all these evils are met. The judge would at once exclude irrelevant testimony, and would confine it to proper issues, and within proper bounds. This is certainly a great abuse, and I think if we can by such a change in our system as would be made by the adoption of this proposed amendment cure these abuses, we will have done the State of Maryland great service. Mr. MILLER. The legislature has full control over this matter; if there is any abuse existing, the legislature can correct it at any time it sees fit. There is no necessity for putting this in the constitution, for if that is done, and it is found to work badly, it cannot be changed or repealed, as it could be if it were be bound to hear him, or if he did not it a legislative enactment and not a constitu- would be discourteous. And then when the tional provision. The gentleman from Balti-judze decided against him, he would take a more city (Mr. Daniel,) and the gentleman bill of exceptions. Therefore so far from from Howard (Mr. Sands,) have spoken about abridging the record, I think it would lead to the trial of these cases before the court below. an almost interminable consumption of time, Now a commission is issued, testimony is taken, where the disposition is to prolong; and as and written and submitted to the judge; the the President has well suggested, it would reparties having a right to except to any ques- quire the judge to sit the whole year, and if the tion they may consider irrelevant. The court judge hears the testimony, you would have to below decides upon that case, and then it goes have a clerk to take down all the testimony. to the court of appeals on appeal, and they If irrelevant testimony is taken down before decide whether the court below decided cor- the commissioner, the lawyer knows it would rectly or not upon those exceptionз. be ruled out by the court? 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 record 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, efore 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 issued conceives that the injunction is not rightfully issued, and you have to send up in the record of the court of appeals the facts upon which the court below acted, in order to obtain 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 appeals. 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 regard for his own standing in court, would before any judge put such questions as you find put by the hundred 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 perfectly competent for the legislature to change it. It is a dangerous experiment, I think, to change almost the whole equity records of the Stute. Mr. STOCKBRIDGE. I am greatly in favor of every proposition which can expedite business in courts of law or equity. For these delays have existed ever since the time of Shakespeare, who considered the law's delays one of the things which would justify suicide; and I do not think it has improved since. But I do not think that this mendment will accomplish the object sought.There are suits in equity and suits at law, be un in the time of our grandfathers, which are not de ided yet. I think the law as it now stands affords greater facilities for suits in equity than for cases at law; providMr. SANDS. My idea is to provide that tes-ed the attorneys are disposed to press their timony shall be taken before a court compe- cause. Our code now says, in reference to tent to judge of the relevancy of the testi- chancery matters: mony. The PRESIDENT. The court would have to sit 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 effectel, where a party is disposed to prolong it faction-ly. 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 admissibility of each question, and the judge would 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 require." The courts have acted upon that, and have presc ibed rules wherever there is a disposition to delay trivially. It is the easiest thing in the world for a solicitor in a cause to obtain 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 for time. Is it not easy enough for me to want John Smith, whose testimony I cannot get; he is in New York, and you can only take his testimony before the court, or send a commission. You s nd a commi-sioner there and he finds it difficult to find John Smith. There will be commissions taken out under this system as under the other, for you will always have the right to send abroad. And under the rules already prescribed in the code, which can be modified at any time by the legislature, when they work hardship, you can have all the expedition that the occasion requir s. I know it has always happened, where a lawyer his lost a cruse, he is sure the jury was corrupt, or stupid, or the judge was wrong, or something of the kind, and he will go to the legislature and get a law pas-ed to apply to his particular case. My colleague (Mr. Daniel) has met with some hardships, and he offers this amendment. My friend from Howard (Mr. Sands) has met with some hardships and he thinks this may remedy it in that divorce case of which he speaks. Pssibly it might; and then it might operate injustice in a hundred other cases. Mr. STIRLING. I agree with my colleague (Mr. Daniel) as to some of the evils of which he speaks. But I would like to know what this constitutional convention has to do with this subj ct? This is a matter regulating the practice of the courts. And we might as well go to work to fill up the constitution with the whole practice of the courts. And if all the lawyers wou'd get up here and jaw about the details we might sit here until kingdom come. Mr. DANIEL. The gentleman voted to go into all the details in regard to the public schools. I find that whenever it suits members to go into details they always do so; when it does not suit them to do so, then they say it is a matter for the legislature. I say that we have the example of New York, one of the largest States of this Union; and I suppose they hid as good lawyers in their convention as ever were in any convention. The Lawy rs there put this in their constitation in very short phrase; and I think it is a very good precedent. In reference to what has been suggested by gentlemen in reference to delay, that this amendment I have off red will cause more delay than the present practice. Now my experience has been different in reference to the trial of causes at law in comparison with the trial of causes in equity. You generally get through your case sooner at law than in equity, for you have a jury there and are assigned your time. And I do not see why you cannot take your testimony, every point that is to go up before the court of appeals, before the julge of the court below, or at the time of your trial in equity, just as you do at law. I know that sometimes in the trial of equity cases weeks and months are occupied in the trial of equity cases; whereas at law a great number of witnesses are examined in one day. I do not see any more reason for a long record in equity than at law. There are a great many questions and points that lawyers wo ld waive when they come before the court of equity. They would certainly presume that the court knew something, whereas they presume that the commissioner knows nothing. And when these points are submitted to the court of equity and argued, they would waive them, and thus they would not go up to the court of appeals and increase the record. There is a section in this report that you may wive a jury at common law as well as in equity. And why should we reverse and alter the whole practice of the State heretofore, which has always required all matters of fact to go before a jury? And yet you think this is an anomaly and not to be put into the constitution, because it is properly a matter of legislation. Mr. STIRLING. If we do not put in the constitution a provision permitting a question to be tried without a jury you cannot do it at all; fifty thousand legislatures could not authorize it to be done, because the constitution guarantees the right of trial by jury; and you must put such a provision in your constitution or not have it at all. Mr. DANIEL. Be that as it may, I think this will save expense and save delay, and will give the judge what has always been cons dered the very great advantage of seeing the witnesses and cross-examining them in his own presence. And I have no doubt that very frequently a case would be decided upon the justice and equity of the case in a different way if the court could see the witnesses upon the stand, hear them testify, see their manner, see them under the fire of cross-examination, by which you te t not only his recollection, but his honesty and motives. LEAVE OF ABSENCE. Mr. DELLINGER asked and obtained leave of absence until Tuesday of next week. Mr. RIDGELY asked and obtined leave of ab ence for his colleague (Mr. Berry, of Baltimore county,) on account of indisposition. Mr. DAVIS, of Washington, moved that the convention take a recess. The question being taken, upon a division yes 30, noes 25-it was agreed to. And the convention accordingly took a recess. EVENING SESSION. The convention reassembled at 8 o'clock, P. M. The roll was called, and the following members answered to their names: Messrs. Goldsborough, President; Abbott, Ann in, Audoun, Be t, Billingsley, Blackiston, Brown, Carter, Crawford, Cunningham, of the bar in this country, I think. And I find that this very proposition I have submitted here was introduced by Mr. Charles O'Conor, and was incorporated unanimously into the constitution of New York. I beg leave to read a few remarks of some of the able lawyers who advocated this proposition. Daniel, Davis, of Washington, Dent. Duvall, I pretty much at the head, if not at the head Earle, Ecker, Edelen, Galloway, Harwood, Hodson, Hopkins, Hopper, Jones, of Somerset, Keefer, Kennard, King, Lansdale, Lee, Marbury, Markey, May hugh, McComas, Mitchell, Miller, Morgan, Mullikin, Murray, Negley, Nyman, Parker, Parran, Pugh, Purnell, Robinette, Russell, Sands, Sch'ey, Schlosser, Smith, of Carroll, Smith, of Worcester, Stirling, Stockb ide, Swope, Thruston, Todd, Turner, Wickard, Wooden-59. On motion of Mr. STIRLING, it was Ordered to be entered upon the journal that Mr. Cushing was detained from his seat on account of indisposition. INTEREST AND USURY LAWS. Mr. BELT. I move that the rules be suspended in order to enable me to make a report from a committee, so that the house may be put in possession of it, and that it may be printed. The motion was agreed to, and the rules suspended accordingly. The report was received, read the first time, and ordered to be printed, as follows: The committee heretofore appointed to consider and report upon section 49. of article 3, of the present constitution, having reference to interest and the usury laws, beg leave to report their unanimous recommendation, that the following section be added to the article on the legislative department. --. Sec. The legal rate of interest in this State shall be six per centum per annum, except in cases where a different rate may be agreed upon between contracting parties; and in all cases of private contract, the rate of interest agreed on, or contracted for, shall be recoverable; and the general assembly shall pass all laws that may be necessary to carry this section into effect. I will first read some of the names of the lawyers to show some of the lawyers in that New York convention: Messrs. Tallmadge, Shepherd, Harrison, Shaw, Witbech, O'Conor, Taggart, Bouch, Worden, Marvin and St. John. All of these gentlemen reported systerus of judiciary; and in a great many of those reports was reported some section of this sort making proceedings in equity similar to those at law. A very full discussion was had. I will show that the very proposition I have submitted here was introduced into that convention by Mr. Charles O'Conor, and unanimously incorporated into the constitution of New York. I read now some of the remarks of Mr. Stetson on this proposition. He said: "But first he would here express his heartfelt thanks to the honorable gentleman from New York, (Mr. O'Conor,) who has so ably, eloquently and triumphantly vindicated the principle of the union not only of the equity and law jurisdiction in one, but of the uniformity of practice and proceedings upon the two remedies. There should be a similarity of proceedings in all cases, and whether proceedings should assume the form of equity proceedings, or the simple and well known proceedings of an action on the case, was of His imprescomparatively little importance sion had been that the better method would be to assimilate all actions and proceedings to the simple form of an action on the case as now used. That the multitude of civil actions now in use, should be abolished, and one plain, simple remedy provided in all cases. On this subject he did not know but he stood alone in his profession, and it was highly The convention then resumed the considera-gratifying to him to find in the honorable tion of the report of the committee on the judiciary department, which was on its second reading. EDWARD W. Belt, JUDICIARY DEPARTMENT. The pending question was on the amendment submitted by Mr. DANIEL, to wit: Insert as an additional section, the following: "Sec. 10. The testimony in equity cases shall be taken in like manner as in cases at law." gentleman from New York so able a champion of that principle. The gentleman and myself desire to arrive at the same result, and it matters but little by which course of proceeding we shall so arrive at it, whether by the simple action on the case, or by a plain, concise, and simple bill in equity.' Mr. Jordan, another very able gentleman, a lawyer from New York, makes use of these remarks, upon the discussion of this question: Mr. DANIEL. I wish to say a few words so "Although the senior of the honorable genas to place myself right upon this subject. Since I had the honor to introduce this amend- tleman from New York (Mr. O'Conor) in ment, I have been examining the debates of years, he would not pretend to the same the New York constitutional convention upon amount of practical experience and accuracy this subject That convention was composed of observation; yet he had seen enough to of some of the ablest lawyers of New York, convince him that if the one or the other must of whom Charles O'Conor was one, Mr. Tall-fall, he would cling to the common law; its madge another-Charles O'Conor standing remedies were bounded by right lines, it did |