BREVIER LEGISLATIVE REPORTS
BY ARIEL & W. H. DRAPIER
Vol. IV INDIANAPOLIS, FEB. 14, 1861 No. 12
On motion by Mr. CONLEY, Mr. Hull's and Mr. Murray's instructions were severally laid on the table upon a division of the House-affirmative 25.
Mr. MURRAY made an ineffectual motion to lay the bill on the table.
Mr. CONNER. I do not believe the act of 1859 contains so just provisions as the act of 1857. The act of 1857 has been on the statute book up to this time, and we have heard no complaittt of it till this session; but under the act of 1859 complaints have come up in great numbers. These acts seem to be a fruitful source of litigation, and I am willing to join gentlemen in their repeal saving pending actions.
Mr. CLAYPOOL. My object is to put forever at rest any question that might arise hereafter in relation to the formation of counties by instructing the committee to amend so that nothing in said acts shall be so construed as to effect any county or counties that may have been organized under said acts of 1857 and 1859.
Mr. CONNER. I accept the amendment.
Mr. COBB. We ought to pass laws that will prevent litigation. I believe if the law of 1857 is repealed, there would be a vast amount of litigation, and hence I say we ought to retain that statute.
Mr. HULL. As this amendment does my county all the injustice possible, I. desire to further amend the instructions by adding a Baying clause that any section or part of township may remain within the present limits upon petitioning the commissioners by a majority of voters residing therein.
And then the Senate adjourned.
HOUSE OF REPRESENTATIVES.
WEDNESDAY, February 6, 1861.The SPEAKER laid before the House a communication from the Clerk of the stationery room in reply to a resolution of the House, bating that he had furnished each member of &e House with $3 worth of postage stamps, according to order.
Mr. ORR asked leave to submit a resolution, terminating debate on tbe reports of the Committee of Thirteen this day, at 12 o'clock.
It was objected to.
Mr. CAMERON (by unanimous consent)submitted the following, which was adopted by consent:
Resolved, That a Committee of Eleven-seven on the part of the House, and four on the part of the Senate-be raised to prepare and report a bill apportioning tho State into proper Senatorial and representative Districts; and that the President of the Senate and Speaker of tho House of Representatives be requested to consult together before appointing said Committee, so that each Cangressional District shall be represented on said Committee.
PETITIONS AND MEMORIALS.
Mr. WOODS presented the petition of Chauncey Wilson and others, residents in the near vicinity of Calumet river in Lake county, for abatement of the unmitigated nuisance of the Calumet Feeder Dam ; and on his motion it was referred to the Committee on the Judiciary.
Mr. WOODHULL presented the petition of sundry citizens of Steuben ceunty, asking for the abolishment of the county treasurer's office ; which was referred without reading to the Committee on County and Township Business.
Mr. CAMERON presented the petition of William C. Talcott and others, citizens of Porter county, for the repeal of the acts for tho formation of new counties; which was referred to the Judiciary Committee.
Mr. CRAIN presented the petition for the new Common Pleas District, proposed to be composed of the counties of Parke, Vermillion and Putnam ; and asked that it be referred to the Select Committee of Three on that subject. It was so referred.
Mr. HENRICKS presented the petition of Thos. S. Stamfield and others, citizens of St. Joseph county, praying that the Surrogate system be adopted in place of the present mode of doing Probate business|; which was referred to the Committee on the Organization of Courts.
Mr. KENDRICK presented the memorial of Thos. A. Goodwin, on the matter of economizing in the public printing, and proposing to do the printing and binding for the State 25 per cent, below the prices now allowed by law.
Mr. HEFFREN inquired after his bill to let out the public printing to the lowest bidder.
Mr. GRESHAM. It had been passed the second reading, and referred to the Committee on Ways and Means.
Mr. HOLCOMB moved that the petition be referred to the select Committee on Printing.
page: 180[View Page 180]Mr. WOODHULL. If the printing could be done 25 per cent, below the prices now allowed by law, the provision ought to be made. He was opposed to the reference.
Mr. ROBBINS. Gentlemen had professed great anxiety for economy. He hoped now they would show their faith by works. He would have the House instruct the Committee on Ways and Means to report back the bill of the gentleman from Washington.
The petition was referred to the Printing Committee.
EXECUTION LAWS.
Mr. WOODHULL, from the Committee on the Judiciary, returned the resolution inquiring into the expediency of repealing all laws permitting the avoidance of the valuation act, requiring property by execution to sell for two-thirds its value, and reported legislation inexpedient, and that the resolution lie on the table.
The report was concurred in.
JUSTICES' JURISDICTION.
Mr. JONES, of Tippecanoe. from the Committee on Organization of Courts of Justice, returned Mr, Moss's bill [86] to amend sections 8 and 10 of the justices' act of June 9, 1852, so as to enlarge their jurisdiction in actions on tort and contract to $300, reporting the proposed amendment of the law neither expedient nor necessary and recommending the indefinite postponement of the bill and Mr. Combs's amendment.
Mr. HOLCOMB moved to lay the report on the table, and that the bill be recommitted. The proposed extention of the justices' jurisdiction was demanded by the people. It would save a great deal in costs. But somehow the lawyers were opposed to it.
Mr. HEFFREN. Two-thirds of the cases now tried before the justices had to go to the courts above. That was his observation. He hoped the report would be concurred in. Lawyers were opposed to increasing the magistrates' jurisdiction, because they know something about law and the management of business generally. Parties before justices generally come out losers by three times as much as if they go before the proper courts first.
Mr. KENDRICK was unwilling that the statement should go out from this House, that the justices of the peace haven't got sense enough to know what they are about.
Mr. HEFFREN would take it back as far as Marion county is concerned.
Mr. HOLCOMB. It was because the office was worth nothing that the justices were so generally incompetent.
Mr. WOODHULL. It was not because he had any pique against the justices that he was in favor of this report, but for many good reasons: It would-be better for the farmer for the law to remain unchanged. In the higher courts a judgment is a lien on the realty; whilst in the justices' court it is not. The party has to get a transcript of the judgment and file it in the Circuit or Common Pleas Court in order to get a lien on the realty. Then this bill would make the constable's office a far more important position. It was true also, as Mr. Heffren had stated, that two-thirds of the cases now adjudicated by justices go to the higher courts before they are closed. He represented a rural district, and there were none in his region desirous of this increase of jurisdiction.
Mr. NEBEKER represented a rural district, and his constituents were in favor of increasing this jurisdiction. He differed with the gentleman as to the effect of it. An individual living in a remote part of the county, and being sued, would much rather pay the mileage of the constable living near, than mileage from the county seat. The present law was antiquated. It was made when money was worth more than it is now-when farmers sold their corn for 10 cents, and their pork to the merchant for $1 25. Money was to be estimated in its relation to other things; and if it was worth twice aa much then as now this jurisdiction ought to be extended to at least $200.
Mr. NEWMAN. The reason why the lawyers as a class opposed this increase of the jurisdiction of the magistrates was, that they would not get quite so many cases before the higher courts.
Mr. FRASIER. Experience had taught him that most of the justices lacked qualification the necessary ability-to discharge well the duties pertaining to their office, especially where the position is not worth anything. But this was not the ground of his objection to the proposed amendment to the law. It was because, as the gentleman from Washington had said, it would increase litigation, that he would go against the bill. Increase this jurisdiction, and let a man sue before a justice on a note of $300. The defendant simply goes and employs a pettifogger-a constitutional lawyer-and he manages the card so as to get the justice to render judgment against him for five dollars or so more than is just and right. He then takes an appeal to the court, introduces his testimony, reduces the amount of the judgment to the proper amount, and throws the costs on the other side. This bill would increase the amount of litigation fully one-fourth or third, not only in the justices' courts, but in the courts of record.
Mr. ATKISSON took the ground that this bill would decrease litigation. If their jurisdiction were increased to three and five hundred dollars, most all the larger cases coming before the justices would be notes of hand, and no defense would be set up against them. And it would facilitate collections. Parties would not have to wait four to six months to get to trial. They could file their claims and take judgment immediately. And as for the interest of the lawyers, he did not think it could materially injure them. He was for extend page: 181[View Page 181]ing the jurisdiction to $300 and to $500, on account of judgment.
Mr. PROSSER. He knew nothing about practicing at the bar; but he always practiced outside. As a constitutional lawyer, he differed with those who would ignore this jurisdiction. An. important principle of law was as likely to arise before a justice of the peace & before a higher court; and it would encourage appeals. Extend the jurisdiction to $500 or $1,000, and every suit would be litigated before the justice and the Circuit Court. If gentlemen desired to make business for the levers, they should extend this jurisdiction.
Mr. EDSON did not often differ with his brethren; but it did seem to him that it was for their interest now to go in for an extension of this jurisdiction. He was satisfied of this from his little experience. There was quite a feeling among the people in favor of this extension, and there were not wanting men trying to pander it. It was that which had placed a lawyer on the same footing of respectability with a man wanting to keep a grocery-he must have a good moral character. Still, he believed the lawyers were able to take care of themselves even better than under the old Constitution.
Mr. COLLINS, of Adams. There were many acses brought before the Circuit and Common Pleas which would not be brought if the jurisdiction were extended, because of delays and postponements. One of these courts sits three times a year, and the other only twice, and postponements are easily obtained. Whereas, if a postponement is obtained before a justice it is only for a short time, and judgment can be had without such vexatious delays and expense. He admitted that there might be cases that would work hardships; but we cannot avoid all hardships. There were many instances where parties would prefer a judgment ; before a justice on three or four hundred dollars. As it regards the inferiority of the judgment of the justices of the peace, there was not a township in the State that could not select an honest man for that office. And if a man has a tolerable idea of what is just and right, even if he is not conversant with the law, his judgment will lead him to what the law is.
Mr. GRESHAM. If what had been said were an argument for increasing this jurisdiction, it were better to go on and abolish all the higher courts. He supposed a case involving a bill of exchange for $200. If it is prosecuted with any vim at all, do we not know that parties would not be satisfied with the judgment of a justice of the peace? If it were determined to pass this bill, its friends should go farther, and provide that the judgment of a justice shall be a lien on the realty; and that would put the title to real estate in danger. We should be slow to make these radical changes. We were now accommodated to the present jurisdiction, and his people were satisfied with it.
Mr. SMITH, of Bartholomew. The reasons assigned here, and the course taken against extending the jurisdiction of the magistrates, were something like that in the Senate four years ago against the interest bill. There were a few bankers In the State, and it was supposed they would be opposed to that bill, but they came down and promised us, if we could get it through the House, they would support it there. We passed it and sent it to them; but the last man of them finally voted against it. An increase of jurisdiction would command better talents for justices of the peace.
Mr. STOTSENBERG replied to the objections to the enlargement of this jurisdiction. Just as grave questions of law were likely to be raised in actions involving less than $100 as in those involving a greater amount. It was a question affecting the interests of the people: if it gives them facilities for collections, let them have it. As to the lien on real estate, the transcript could be taken and filed at once. It would relieve the dockets of the Circuit and Comman Pleas Courts.
Mr. ORR concurred in these views. He considered it would confer a great benefit on the people.
Mr. PARRETT. It was an experiment. There were, perhaps, good reasons both ways. It was plausible that a principle was the same, whether it involve $50 or $200. in the State of Ohio, three or four years ago, they gave justices jurisdiction to $300. Since that they had reduced it. But in Michigan, the justices had jurisdiction to the amount of $200, and it worked well; and they could send writs all over the country. The same thing obtained in New York.
Mr. WOODHULL. They had better chances for continuances, &c.
Mr. PARRETT. That was so. The question was not whether it would benefit lawyers as a class. If it was for the advantage of the people at large, he was for it. It was not by practice before justices that lawyers had their living. There they had their labor without a living. He did not know but it was best. As to the objection that the justice's judgment gave no lien on the realty, the transcript could be taken at once, as stated by Mr. Stotsenberg. Of course the plaintiff would be at perfect liberty still to take his case where he would. The bill could injure nobody; and it might not only facilitate collections, but call better qualified men to fill the justice's office. He inclined to the opinion that it would prove satisfactory in practice.
Mr. WOODHULL. The same rule of appeal applies before the justices, but the rules of pleading were not restricted.
Mr. PARRETT. There was nothing lost by that. The pleadings there were all in the head, and as plastic as dough.
Mr. VEATCH. If he really believed the interests of the country demanded it, he would page: 182[View Page 182] go for it, for he was very sure there was nothing in it that could injure lawyers as far as fees are concerned. He believed the title of the bill ought to be read thus: to increase the jurisdiction of justices and increase litigation. He differed with gentlemen, holding that this jurisdiction was limited to a certain amount because the justices have not sense to try causes. This was not the principle. He urged that a principle of law involving $100 could be just as easily decided as if it involved $5,000. You all know that justices of the peace, generally, are really incapable of entering up a judgment with that precision and exactness which would stand the tests. If the cause involves only $50 or $100, it would not justify the party in carrying it up. The judgment on the merits would remain there. But suppose you increase the amount to $500, then every defect in the proceedings before the justice would be carefully set out and carried up, and so litigation would be multiplied without end. Instead of circumscribing litigation and taking business out of the hands of the lawyers, you would have just the thing that would be giving them a great harvest. Now, the plain, practical question is here: Would not this bill increase the number and frequency of these cases before the justices ? If it would, then, instead of increasing it, the law should reduce the amount, and take all important causes to the higher courts, where they would be more carefully guarded. One gentleman says it is for the benefit of the debtor. It saves in fees of the higher courts, and in mileage. Then, to be consistent, you ought to give exclusive jurisdiction to the justices ; for if you do not, your remedy would not be complete. But it was claimed by another gentleman that it benefits both the debtor and the creditor-that it would operate beneficially both ways-a great measure, truly-so admirably fitted to everybody. But where will this measure operate in favor of the debtor class ? Unless you give exclusive jurisdiction to the justices, up to the amount fixed, you leave every plaintiff to go, if he will, to the circuit or the common pleas court. You do not benefit the debtor class at all, for you never knew a cause where the parties were friendly, that they did not accommodate the matter. If the creditor wants to save his neighbor costs, he will give him notice, and he will confess judgment before a justice; but if not, he will go where it suits his convenience best. But he was distinctly opposed to enlarging the jurisdiction for confessing judgment. He had seen more injustice and fraud practiced on that point than almost any other. For instance: a man is getting into a tight place, and wants to accommodate his friend; and he says to him, I am going to be sued; j come in here before this justice of the peace, and I will confess judgment on what I am owing you. And before the world knows it, there is a judgment and execution levied on ;all his property. He could not think the provision would work well, but ill, by giving occasion for fraud and injustice that would be taken advantage of.
Mr. ATKISSON. Couldn't a man now go into court and do the same ?
Mr. VEATCH. That would make no difference. There is evil in it. There was another objection ti the bill. All interference with old, settled customs was injurious. Whenever a thing is found to work well, it was a good rule to let it alone. He had often heard the cry, Legislate for the farming class, and keen the fees from the lawyers; and while they have been a great while working to that point every change that has been made has only brought up new causes of complaint. Look at the supreme court, piling up their reports year after year, and month after month, to the great expense of litigants. All this comes from those changes of the law professing to destroy litigation and make every man his own lawyer. The gentleman from Warren (made a lawyer by the constitution,) was right in his practice, never to charge anything. That which costs him nothing he should charge nothing for.
Mr. PACKARD. Instead of injuring the lawyers, it would benefit them. It was a fact that most cases exceeding $50 went now to the higher courts. Then what benefit was to come from raising that jurisdiction? It would seem that experience would teach us against this change. The office of justice of the peace went a begging. Men having a limited knowledge of the law did not want to hear their neighbors difficulties. The reason why the extended jurisdiction in Michigan was said to work evil, was because it was disregarded. They went to the higher courts with all their cases. This extension was not asked in his region. It would open a wide door to fraud and injustice.
Mr. CAMERON demanded the previous question, but withdrew for-
Mr. FRASIER, who explained, that by the term "constitutional" lawyer, he had intended to indicate, not those who have come recently into the profession, but those going about provoking petty litigations and practice for whisky.
Mr. HOLCOMB. It seemed an extraordinary thing to Mr. Veatch that this would operate well in two ways. It was true, however, that it would operate to the advantage of the creditor, in the case of the absconding debtor; and it would save costs to the debtor. But the gentleman said confession of judgment gave scope for frauds by preferment of creditors. That evil would not be increased by this bill.
Mr. CAMERON now insisted on his demand for the previous question, and, under its operation, the report was now concurred in-yeas 24, nays 63-as follows :
page: 183[View Page 183]YEAS- Messrs. Bingham, Branham, Burgess, Cason, Crain, Edson, Erwin, Fraley, Frasier, Gresham, Heffren, Howard, Jones of Tippecanoe, Knowlton, McClurg, Packard, Prosser, Smith of Miami, Thomas, Veatch, Williams, Veatch, Woods, and Mr. Speaker-24.
NAYS Messrs. Anderson, Atkisson, Boydston, Brett, Cameron, Campbell, Collins, Adams, Combs, Cooprider, Dashiel, Davis, Epperson, Feagler, Ferguson, Fisher, Fleming, Ford, Fordyce, Gifford, Gore, Hall, Harvey, Haworth, Hayes, Henricks, Kitchen, Lods, Lane, Lightner, McLean, Moorman, Moss, Mutz, Nebeker, Newman, Orr, Parret, Pitts, Polk, Prow, Ragan, Randall, Robbins, Roberts, Sherman, Sloan, Smith of Bartholomew, Stevenson, Stotsenberg, Trier, Thompson, Turner, Underwood, Warrum, Wells, Wilson, Woodruff-63.
The question recurred on the motion to re-commit to the Committee on Organization of Counts of Justice.
Mr. DAVIS proposed further to amend by striking out "$300," and inserting "$200;" and striking out " $500," and inserting "$300."
Mr. HEFFREN moved to recommit the bill, with instructions to inquire into the expediency of increasing the justices' and constables' bonds to $3,000 each.
Mr. JONES, of Tippecanoe. That was in the bill now.
Mr. FRASIER proposed to amend further, so as to give justices final jurisdiction in bastardy cases.
Mr. ROBBINS proposed $400 jurisdiction on confession of judgment.
Mr. SMITH, of Bartholomew, moved to lay Mr. Davis's amendment on the table.
Mr. CAMERON moved to lay all the amendments on the table.
The House refused to table, by yeas 35, nays 48.
Mr. NEBEKER proposed to double the present measure of the justices' and constables' bonds.
Mr. HOLCOMB moved, ineffectually, to refer the bill to the Committee on County and Township Business, with instructions to amend, so as to authorize justices of the peace to fine and imprison for contempt.
The question again recurred on the motion to recommit to the Committee on Organization of Courts.
Mr. FISHER hoped it would not go back. We have spent time enough on it-no doubt the minds of gentlemen were made up. Without instructions, we could expect nothing but the same report again from the same committee.
The House refused to recommit: and then-
On motion of Mr. GRESHAM, the bill and Mr. Combs's amendment were referred to the Committee on Rights and Privileges, with the following further propositions to amend :
By Mr. POLK, so as to authorize but one justice to each civil township of 1,500 inhabitants.
By GRESHAM, to confer on the justices concurrent jurisdiction with the Courts of record in all cases civil and criminal.
By Mr. RAGAN, to insert at the words "justices of the peace," these words: "Mayors of towns and cities."
By Mr. GRESHAM, to make the decisions of justices, &c., final.
Mr. STOTSENBERG made an ineffectual motion to call up the report of the Committee of Thirteen.
REPORTS FROM THE COMMITTEE ON COUNTY AND TOWNSHIP BUSINESS.
Mr. FRASIER, [chairman] returned the petition of sundry citizens of Steuben county for the abolishment of a county treasurer's office, and for the election of township and city tax collectors:
Also, the resolution proposing that all moneys coming into the hands of supervisors shall be paid to the lowest bidder for road work :
Also, the resolution for the repeal of the county treasurer to visit the precincts for tax gathering:
Also, the resolution for expanding the road tax in the district where collected: with the expression of opinion that legislation on these several subjects is inexpedient, and thai the papers lie on the table.
The reports were severally concurred in.
NEW BILLS
Of the following titles were passed to the second reading:
Mr. FRASIER: [173] Supplemental to the acts of March 2, '55, and December 26, '58 for the re-location of county seats.
Mr. WILLIAMS: [174] To authorize the organization of Insurance Companies in the State of Indiana.
Mr. VEATCH: [175] To authorize the killing of dogs that are found wandering away from their owners, providing for licensing dogs in cities and towns, &c., and prescribing duties of township assessors in certain cases.
Mr. ANDERSON: [176] To license dogs, and providing for the payment of damages sustained on account of maiming and killing sheep by dogs.
Mr. MOSS: [177] To regulate the remission of fines and forfeitures, and to repeal all laws conflicting with this act.
Mr. KENDRICK: [178] To amend sections 2, 3, and 14 of the act of March 1, 1859, amendatory of the General City Corporation law of March 5, 1857.
Mr. WOODS: [179] Regarding estrays and articles adrift, and repealing all laws in conflict with this act.
Mr. COOPRIDER: [180] To amend section 13 of the act of January 12. 1852, to provide againt the consequences of lost books, papers, &c., to restore lost papers and provide for the perpetuation of testimony.
Mr. ORR: [181] To amend the 17th section of the justices act of June 9. 1852, defining their power and duties in civil cases.
Mr. PARRETT: [182] To amend sections 1 and 3 of the act in relation to public officers, &c., approved March 5, 1859.
Mr. FRASIER: [183] To create the 17th page: 184[View Page 184] Judicial District; to provide for the election of a Judge; to fix the time of holding its terms; to provide for the election of a Prosecutor for the 10th Circuit, &c. [The district to be composed of the counties of Kosciusko, Elkhart, Lagrange, Steuben, Noble and De Kalb.]
Mr. JONES of Tippecanoc: [184] Providing for the jurisdiction of the Circuit and Common Pleas Courts, in case of forfeited recognizances, &c.
Mr. HENRICKS: [185] To provide for numbering the several districts of the Court of Common Pleas in the State of Indiana.
THE STATE PRINTING.
Mr. HEFFREN submitted a joint resolution [30] rehearsing that the State Printer was elected under a joint resolution, subject to removal, and that there is a responsible proposer to do the public printing 25 per cent, below the present legal rates, c., and declaring the office vacant, and giving the printing for the State to Thomas S: Goodwin, "at 25 per cent, discount on the prices now allowed by law, until some other arrangements are made for the same; provided he gives satisfactory bond and security for the prompt and faithful execution, under the restrictions and requirements now provided by the laws on public printing."
Mr. BUNDY moved to refer it to the Select Committee on Printing.
Mr. HEFEREN moved to lay that motion on the table.
Mr. CAMERON demanded a call of the House; and-
Pending proceedings in the call-
Ths House adjourned.
IN SENATE.
THURSDAY, February 7,1861.Mr. WILLIAMS introduced a bill [128] to apportion Senators and representatives for the next six years, which was passed the first reading, without objection; rules suspended-yeas 42, nays 0-read the second time by title only and referred to the Committee on Apportionment.
[Leave of absenee was obtained for Mr. Shoemaker till Tuesday.]
Mr. MELLETT offered a resolution which was adopted authorizing the appointment of a joint committee on apportionment-identical with the one introduced by Mr. Cameron and passed by the House yesterday.
Mr. STUDABAKER offered a resolution which was adopted, directing the Committee on Education to inquire into the expediency of so amending the school law as to fix a day annually when the county auditor and treasurer shall sell all lands mortgaged to. the school fund on which the interest shall not previously have been paid; making semi-annual distribution; the county auditor and treasurer to report under oath the amount of the school fund loaned in their counties, and the amount of interest distributed.
Mr. MURRAY presented two petitions from citizens of Elkhart county, praying for protection against sheep killing dogs; and Mr. HAMILTON one, which were referred to the Committee on Agriculture.
REPORTS FROM COMMITTEES.
Mr. COBB, from the Committee on the Organization of Courts, returned Mr. Tarkington's bill [S. 100] to create the fourteenth judicial circuit, recommending passage.
Mr. STONE, from the Committee on Roads returned a resolution, [see page 80 of the Reports,] and also a bill in accordance there-with [S. 129] to amend section 15, chapter 48 of the Revised Statutes-being an act concerning the opening, vacating and change of high-ways, &c., approved June, 17, 1852; go that when a change is granted by the county commissioners the petitioner shall pay all expenses incurred, if the change is on his own land and not of public utility, which was passed the first reading.
Mr. HULL, from the Committee on Roads returned the resolution asking an amendment of sections 19, 22 and 23, of the act regulating change, vacation, or location of highways, approved June 17, 1852; reporting no further legislation necessary.
These reports were severally concurred in.
NEW PROPOSITIONS.
The following bills were read and passed the first reading without objection:
By Mr. MILLER: [130] To amend section 11 of an act touching the laying out and vacating towns, &c.
By Mr. MELLETT: [131] To repeal an act to amend 138 section of an act to provide for the settlement of decedent estates, &c., aproved June 17, 1852, approved March 7, 1857, and to assist in the settlement of the estates of decedents.
By Mr. MELLETT: [182] To repeal sections 117 and 118 of the above recited act.
By Mr. BEESON: [133] To authorize the killing of dogs that are found running away from their masters, to provide for licensing dogs in cities and towns, and an allowance out of the county treasury to the owner of sheep killed by dogs.
By Mr. MURRAY: [134] To license dogs and provide for the payment of all damages sustained in the killing of sheep by dogs.
By Mr. LANDERS: [135] An act declaring a commission merchant, attorney at law, or railroad conductor who commits a breach of trust, a felon.
By Mr. NEWCOMB: [136] To amend sec. 6 of an act to provide for the organization of courts, &c, approved June 17, 1852.
By Mr. MILLER: [137] To repeal an act to provide for the voluntary assignments of personal and real property in trust for the benefit of creditors, &c., approved March 5, 1859.
page: 185[View Page 185]By Mr. MARCH. [138] To amend section2 of an act to amend sections 207 and 208 of the practice act, approved June 18, 1852, so as to authorize a change of venue in certain cases, approved March 5, 1859.
By Mr. SHOULDERS: [139] To amend sec. 5 of the liquor law, approved March 5, 1859.
By Mr. LOMAX: [140] An act supplemental to an act to provide for the colonization of negros and mulattoes.
By Mr. BLAIR: [141] To amend section 34 of the revised statutes of 1852, entitled an act to provide for the incorporation of railroad companies, approved May 11, 1852.
By Mr. MILLER: [142] To authorize the trustees of Indiana University to appropriate a certain amount ($1,000) to enlarge the library, &c.
[The PRESIDENT announced the special order for this hour (10 o'clock) to be the consideration of the minority report of the Committee on Federal Relations, identical with the joint resolution S. 4-see page S. 44 and 45 of these reports. On Mr. Anthony's motion it was made the order for this day week at this hour.]
By Mr. CONNER: [143] To authorize the Bank of the State to lay off and create five additional bank districts, and to create and establish branches therein.
By Mr. NEWCOMB: [144] To amend sec. 6 of the assessment and valuation act, approved June 21, 1852, so as to exempt certain property therein named from taxation.
By Mr. NEWCOMB: [145] For the incorporation of companies for agricultural, horticultural and nursery purposes.
By Mr. ANTHONY: [146] In relation to petit juries. [Either party shall have the right to challenge a juror, and assign for cause such person has acted as jury in said county within one year preceding.]
By Mr. MURRAY: [147] To repeal all laws for the organization of militia of this State.
REPEAL OF THE NEW COUNTY ACTS.
The Senate resumed the consideration of the unfinished business of yesterday-being Mr. Turner's bill [S 43-page 69 of these Reports] to repeal the acts of 1857 and 1859 and to authorize the formation of New counties. The question being upon Mr. Hull's amendment to the amendment-
Mr. TURNER. This bill submits the matter of change of boundaries or the formation of new counties to the vote of the citizens of the county or counties to be affected by such change. As the law now stands, all that is required is a majority of the citizens of the territory designed to be so set off, to act in the matter.
Mr. STEELE. This bill is now precisely as the act of 1859 left the Senate two years ago. Both the House and the Senate voted for that act, expecting the very provisions now proposed were in it; but by some hocus-pocus of the clerks of the House, it does not appear in the law.
Mr. CONLEY explained the effect of the bill.
Mr. MURRAY. The constituents whom I represent having a deep interest in this question, I feel it to be a duty I owe to them to oppose the measure before the Senate ; and not only on account of their interests, but it is against what I conceive to be a correct and fair mode of legislation. It does not give Senators a fair opportunity to express their opinions upon the two distinct propositions embraced in the bill. If gentlemen desire to repeal the law of 1857, why do they not come in here with a bill for that purpose, and for that purpose alone. I am willing to meet gentlemen on these two propositions if they will divide them and give us fair play. If gentlemen had come in with a proposition that the people should have no right to transfer themselves under any circumstances whatever, i would have amounted to the same thing, as thp object of this bill is to cut off the people of a portion of one county from removing, where their interests demand that they should go, to another county. [Mr. M. referred to a casein which a portion of his constituents were interested, and stated that the passage of thip law would work seriously to their disadvantage.] I am willing to take the amendment of the Senator from Wabash, provided il saves the cases pending before county commissioners.
Mr. HULL. I am surprised at seeing gentlemen advocating principles which do not allow majorities to rule. I move to lay the pending amendments on the table.
Mr. TARKINGTON. I move to lay the bill and the pending amendments on the table.
Mr. CONNER demanded a division of the question.
[A message from the House announced the passage of the resolution similar to the one adopted by the Senate this morning, submitted by Mr. Mellett.]
Mr. Hull's amendment was laid on the table, by yeas 23, nays 22.
Mr. Conner's amendment was laid on the table upon a division.
The motion to lay the bill on the table was rejected by yeas 16, nays 28.
Mr. ANTHONY. All this has arisen for the reason suggested yesterday by myself, thai Senators attempt here to consult their own individual interests, rather than legislate upon general principles which ought to govern us all. This body passed a law by which certain vested rights were acquired; and the Senate now, for the simple reason that then their action was wrong, propose to take away those vested rights and inflict injury upon those people. Not one good reason has been given for the repeal of this bill. I move to refer the bill and pending amendments to the Judiciary Committee, with instructions to inquire into the constitutionality of said bill, and append page: 186[View Page 186] amendments which will prevent litigation. I think there is a very considerable question whether the bill proposed to be passed is a Constitutional act.
Mr. SLACK moved to recommit, with instructions, so as to provide that all cases commenced or pending in any courts in this State whereby new counties have been formed, or proceedings pending under the acts of 1857 or 1859, shall not be affected by the passage of this bill. Mr. S. said, I care nothing about this bill one way or the other. I know I voted against the law of 1859 two years ago; I am in favor of repealing them both ; I think they ought never to have been passed, but I will not vote for their repeal unless there is a claus adopted saving the rights we then conferred upon the people.
Mr. WHITE. So far as I am concerned, it makes but little difference whether this law be repealed or not, if it be with a saving clause; all the mischief you can do us will be done by a saving clause. I hope the bill will be passed as it is.
Mr. JOHNSON. There is as great feeling in opposition to 'the new county proposed in my district within its own bounds as any where else. A large majority of the people I represent are opposed to it. I voted for the law of 1859, but it was represented to us that it was solely for the purpose of accommodating some of the people of the northern part of the State-for their benefit and nothing else. I was then of the opinion that the law would be of benefit to the country, but since that time I have been convinced that the entire law is wrong.
Mr. CLAYPOOL. It seems to me it is right and proper that this matter should be referred to the Judiciary Committee. I need not say that I have no personal interests in this matter. Hasty and inconsiderate legislation is very much to be deprecated. Almost every a gentleman who has been connected with this I transaction has given ample testimony to that fact, and yet, in the face of that, they attempt to drag us into the same difficulty. So far as I am concerned, I will stand in this Senate and beat back this idea. I have not made up my mind in reference to this bill, and until I know the bearing it will have upon the State at large, I can not vote upon it.
On motion by Mr. HULL, the motion to refer to the Judiciary Committee was laid on the table.
Mr. CRAVEN. I move to concur in the report, with an amendment providing, that nothing in this act shall affect any proceeding had or pending before any board of county commissioners or other court, under the act of 1857. Let this amendment be adopted, and I will vote cheerfully for the repeal of the two acts.
An ineffectual motion was made-yeas 17, nays 28-to lay this amendment on the table.
Mr. TURNER. I desire to amend the amend the amendment by inserting, in the proper place, that nothing in this proviso shall be so construed as to apply to cases where petitions for a change have been filed before any board of county commissioners, and no other proceedings have been had.
Mr. NEWCOMB. I move to refer the bin and pending amendments to the Judiciary Committee to determine this question, and to examine all its legal bearings. I desire to go work understandingly. I think this whole system of legislation with regard to new counties has been unfortunate.
Mr. CONLEY. If that bill can be reported back at an early day, and these amendments go not as instructions, I would be willing for the reference.
The motion was agreed to.
Messrs. Turner, Hull, Ray, Cobb and Miller submitted further amendments by way of instructions which were referred to the Committee without reading.
INDIANA AGRICULTURAL REPORTS.
Mr. MURRAY offered a resolution, which was adopted by consent instructing the Committee on Agriculture to report the cost of publication and transportation of the Indiana Agricultural Reports; the amount of money annually appropriated for that purpose, and whether the salaries of officers of the State Board cannot without detriment be reduced one half.
[Leave of absence was obtained for Mr. Shoulders till Monday week.]
And then the Senate adjourned.
HOUSE OF REPRESENTATIVES.
THURSDAY, February T, 1861.PETITIONS.
Mr. BUNDY presented the petition of Susan B. Hunt, and other ladies, citizens of the State of Indiana, for a prohibitory liquor law. He said this was a petition from ladies of his county; and as women were more interested in this question of prohibiting liquor selling than others in community, because they suffer more from the evils of intemperance than any other class, they deserved a hearing. Under court decisions, he supposed, it was not competent for the Legislature to grant the prayer of the petitioners, He would, however, move that the petition be referred to the Committee on Temperance.
It was so referred.
Mr. FRALEY presented the petition of H. McDice and others, citizens of Fountain county, asking for a change in the law that will allow any man, at his own expense, to change lie course of a public highway on his own and in any manner, so he does not increase its length more than 10 per cent.; which was referred to the Committee on Rights and Privileges.
Mr. JENKINSON presented the petition of page: 187[View Page 187] William T. Hunter and others, for protection against sheep-killing dogs; which was refer-red to the Committee on Agriculture.
Mr. UNDERWOOD presented the petition of Israel Caldwell and others, for changes in the liquor nor law, so that the general reputation of a a drunnkard shall be sufficient notice against selling to him ; to give justices of the peace power subpoena witnesses, make arrests, appoint a prosecutor, and allow him a fee if the State gains. It was referred to the Committee on Temperance.
Mr. DAVIS presented the petition of John McFaclden, Sr., which was referred to the Committee on Claims, without reading.
Mr. GORE presented the petition of Ephraim Hunnicutt, and others, residents of Hamilton county, asking for specific salaries for county auditors, treasurers, sheriffs, and clerks of the courts, proportioned to the number of inhabitants in the county; which was referred to the Committee on County and Township Business.
REPORTS FROM THE JUDICIARY COMMITTEE.
Mr. VEATCH returned Mr. Williams' bill [85] amend the title of the Bridge act, and repeal the Bridge act of March 3, 1859, with an amendment by substitute, entitled, A bill [186] to authorize the Board of Commissioners to purchase toll bridges, or any private interest therein. He said the act referred to contained a provision authorizing the Commissioners to purchase bridges; but as that was not indicated in the title, some doubt had arisen as to its constitutionality. The Committee thought it better to report an original bill for the purpose, than to amend the title of an existing law.
The bill was passed to the second reading.
Mr. JENKINSON returned Mr. Heffren's bill [73]-hard money treasuryand reported a motion that it lie on the table.
The report was concurred in.
Mr. BUNDY returned Mr. Packard's conventional interest bill, [14] and reported a motion to lay on the table-the Committee having heretofore reported a bill on the subject.
The report was concurred in.
EXECUTION LAWS.
Mr. WOODHULL, from the Judiciary Committee, returned Mr. Packard's bill [134] to amend section 476 of the practice act-[so as to abolish the five days in proceedings against non-paying purchasers at sheriff sale, which require notice and judgment at the next term of the Court; and deprive the purchaser of the benefits of valuation and appraisement]-reporting the opinion that further legislation on the subject is inexpedient, and a motion that the bill lie on the table.
Mr. ATKISSON hoped the House would not coocur. It was a bill simply to provide that an individual purchasing at sheriff sale, and refusing to pay, shall not have the benefit of valuation and appraisement law, when he is proceeded against by motion. Under the law now, the defaulting purchaser has the benefit of valuation and appraisement. He gave an example of hardship in collecting, where such a person turned out a worthless old mill, &c. protected by valuation. A man purchasing at sheriff sale ought not to have the benefit of appraisement laws.
Mr. PACKARD was surprised at the report. It was simply to prevent injustice and wrong in cases of purchasing at sheriff sale. He also gave an example, and moved that the report be re-committed.
Mr. VEATCH. It provides for abolishing the five days' notice; it gives ten per cent. damages and no stay of execution. It is often the case that a man buys at sheriff sale without having an opportunity to look into the title, and his title might not be worth his money. The original judgment stands good; and the bill would offer a double remedy. He considered the law wisely arranged, as it now stands.
Mr. WOODHULL. The Committee had heretofore reported Mr. Atkisson's bill [66] on the same point.
Mr. STOTSENBERG considered that no argument. He was unwilling to accept a report without the Committee alleging reasons for it. He favored the bill. The executive plaintiff had not a double remedy under it. If he takes one of the chances, then he has to advertise again, &c. He would give a man a chance to collect his debts. It was now five days notice, but it must be in the proper court.
Mr. VEATCH. Can't the sheriff sell again on the same day-re-offer the property ?
Mr STOTSENBERG. Yes: but suppose the honest debtor tell him he will pay it, then the Sheriff may wait, and the court will adjourn ; and so ordinarily the creditor would have to wait until the next term of the court; and then, if the man choose to turn out property worth little or nothing, the execution creditor might never get his pay in the world. The gentleman's argument would go against the right of all sales. When property is sold by the sheriff on appraisement, the bidder may easily find out its cash value. And if his property were held to make his bid good without valuation or appraisement, he would be more careful to go and see first, whether the title is good or not. We were making laws for the benefit of the people of the State, and not for speculators. Business men desire some chance to collect their debts; and if a man buys property in this way, he ought to pay for it, and pay for it soon.
Mr. PACKARD. It could work hardship to no one. How could a person be entrapped in bidding off property with published terms? That was a strange way of being entrapped. If a person buy in this way, and fail to pay, it must be from sinister motives. If he does not comply with the terms of sale, let him take the consequences. He believed the Judi page: 188[View Page 188]ciary Committee, on reflection, would report in favor of the bill. It had the approval of good lawyers.
Mr. CAMERON hoped it would be recommitted. He did not want to protect purchasers at sheriff sale.
Mr. EDSON said there were two sides to this question. The sheriffs sell merely the interest of the holder, and sometimes the purchaser is deceived. In such cases there would be hardship. He knew also that the passage of this bill would be a benefit to the lawyers.
Mr. STOTSENBERG. How would it benefit the lawyers?
Mr. EDSON. Why, the man, before purchasing, would have to go and consult a lawyer with regard to the title.
Mr. CAMERON. Does this bill propose to gave the purchaser?
Mr. EDSON. No; but if proposes a remedy for creditors.
Mr. ATKISSON. Do you propose to let the purchaser go on and buy, and then give him time to get, counsel afterwards?
Mr. EDSON. No, sir; nor would it be right and just for him, if he makes a bad purchase, to pay 10 per cent, damages, and so have his property sold without benefit of the valuation laws to pay another man's debt.
Mr. JENKINSON. Suppose a man wants time, after purchasing.
Mr. EDSON. There were two remedies: one to re-offer tho property; the other to get a rule for notice and sale at the next term.
Mr. JENKINSON. What was the plaintiff's remedy?
Mr. EDSON. If the purchaser does not take the property, one remedy is, to re-offer it; and if it does not bring enough, take more, and ten per cent, damages, without benefit of valuation or appraisement laws.
Mr. HOLCOMB. Was not the three months advertisement sufficient time to look after the title?
Mr. EDSON. Certainly. He admitted that there were two sides to this question. There were no doubt fra ids perpetrated under the law as it now stands. And this bill would work hardships in cases where worthless property is bought. But it would guard against irresponsible bidders.
Mr. JENKINSON. The sheriff was not bound to take an irresponsible bidder.
Mr. EDSON. Neither was he bound to postpone the sale. He gave examples.
Mr. CASON hoped the matter would be voted on now. It had been twice considered by the committee. If they were to report differently, it would be merely to accommodate the House. In reply to Mr. Stotsenberg's allusion to the lack of reasoning in the report, he did not understand it the duty of any committee to put a stump speech into every report. The reading of the bill before the House would answer better. The matter stands thus : The property may be unsound, title bad-the sale goes on-the property is struck off, and if the money is not paid, the sheriff sells again immediately, and the judgment creditor has a right to the difference between what it brought, at the first and las sale, if it sell lower. &c.
Mr. PARRETT moved to lay the motion tn re-commit on the table, but withdrew for a direct vote on concurrence in the report.
Mr. PACKARD demanded the yeas and nays which being ordered and taken, resulted-yeas 50, nays 43 ; so the report was concurred in, and the bill laid on the table.
EXTRA SERVICE OF SHERIFFS AND CLERKS.
Mr. BUNDY, from the Judiciary Committee, returned Mr. Nebeker's bill [8] to provide allowance to sheriffs and clerks of the Circuit and Common Pleas Courts for extra services and reported an amendment by way of substitute. The substitute [187] provides thai the Board of County Commissioners shall allow their clerks and sheriffs an annual compensation for extra services not exceeding $100 each; but no such allowance shall be made until the clerk or sheriff shall have filed a detailed statement of his extra services and the ordinary charges therefor. The Board shall then make such reasonable allowance as they shall see proper, but in no case exceeding $100.
Mr. B. said his was a substitute for Mr. Nebeker's bill. But still he thought $150 too small. He proposed to further amend by inserting $200 for $100. Some discretion should be confided to the commissioners. This was a revival of the law of 1852. There had been progress in business since. There were abuses under the act of 1855, which gave unlimited dircretion to the commissioners. But here the discretion was limited again. They were not required, of course, to come up to the limit. His amendment was for the larger counties.
Mr. NEBEKER. Would not the office of sheriff be better in Warren than Marion under that bill?
Mr. BUNDY. The sheriff was the poorest paid officer in the State; but he still would prefer the office in the larger county.
The matter passed over for the special order of the day.
Mr. VEATCH (by unanimous consent) returned from a majority of the Judiciary Committee Mr. Nebeker's bill [39] to authorize new counties, &c., with sundry verbal and clerical amendments, recommending passage.
Mr. CASON, on the part of a minority of said committee, also recommended the passage of the bill, with an amendment to the effect, That nothing in this bill shall operate so as to supercede any proceedings heretofore commenced for the organization of new counties, but that all such cases shall proceed under the law as it now exists.
Mr. VEATCH moved that tho bill and page: 189[View Page 189] amendments lie on the table, and be made the special order for Wednesday next.
Mr. STOTSENBERG proposed "Thursday," to get beyond the time of Mr. Lincoln's visit.
Mr. VEATCH acquiesced.
Mr. WOODHULL moved to print the bill, He urged caution on this subject, from the fact that the journals show that the bill of the last session became a law without embodying the intent of the Legislature.
Mr. McLEAN also alleged that the new county bill of 1859 was passed through fraud or mistake. He confessed that he himself voted for it by mistake.
Mr. BUNDY asked for a division of the question.
Mr. FRASIER opposed printing, because every member was now perfectly conversant with its provisions. The only question was, whether the amendment reported by the minority should be adopted.
On motion by Mr. DOBBINS, the motion to print was laid on the table.
The report and bill were then laid on the table, and made the special order for next Thursday at 10 o'clock.
Messrs. Moody, Davis, Heffren and Collins, of Adams, had leave of absence on account of indisposition.
CONVENTIONAL INTEREST.
The SPEAKER announced the special order, viz.: the consideration of Mr. Orr's conventional interest bill [84], to regulate interest on money, to repeal the act of May 27, 1852, and repeal, &c., ($6 a year on $100, or at any rate contracted, not exceeding $10 on $100.
On motion by Mr. NEBEKER the House resolved into committee of the whole on the subject-Mr. Nebeker in the Chair-and the bill was considered by sections.
In the first section-
Mr. BRANHAM proposed to amend by striking out " ten," and inserting "six" and at the proper time he would move to repeal all laws in relation to usury.
Mr. BUNDY. That was to place it where the law is now. This was a subject that has excited a great deal of attention-the rate of interest on the loan of money. It had been peculiarly exciting in this State for the last few years. At every late session of the General Assembly it had been presented and debated time after time. It was evident that there is a great desire on the part of the community that some change should be made-that some discretion should be allowed to those who want to borrow money-that there should be some latitude for agreement as to the rate of interest, instead of holding them rigidly to the horizontal line of six per cent. He considered that a larger discretion should be allowed. The discretion asked for in this bill was allowed in the States of Michigan and Illinois; and it was so much desired in this State by our own citizens that they would go over the line into those States and make their contracts, so that they could enforce them legally here. This was done frequently. Why was it that the laws of the State of New York fixed the rate of interest at 7 per cent., others at 8 per cent., and other States higher? And why was it that parties were so frequently ready to contract and pay even 12 per cent? It was because there is no uniform value of money. It was like any other article of commerce-it fluctuates in accordance with the law of supply and demand. With money it was just as it is with corn or wheat; when it is scarce it is high; and when it is plenty it is low. Any man that would examine tho subject must be satisfied, that you cannot, in justice to the community, fix upon any rate of interest lower than its current value. Money was an article of trade, having no uniform value, as might be seen in the various interest law of New York, fixing interest at 7 cents, Alabama fixing it at 8 cents, and in some States at 5 cents. Our ideas on the subject of usury were borrowed from the old laws of England ; but did gentlemen know that we are many years behind England in our legislation on that subject? It was originally fixed there as a restraint upon the Jews, who at one time held control over the money capital of Europe. But England had long since abandoned her usury laws, and now it is thrown open there and made a matter of contract; and no punishment is inflated on a man for taking a greater rate than 5 or 6 per cent. When gentlemen refer to precedents, he would call their attention to this fact. England had progressed. We had not kept pace with England on this question. He repeated that it was a question of commerce-of supply and demand. You might just as well say that every bushel of corn shall be worth just 25 cents, as to say that the use of a dollar shall be 6 cents a year. You might just as well say that a bushel of wheat shall be always worth one dollar, as that when we borrow a dollar we shall always pay 6 cents for it at the end of the year. He was for allowing parties to contract for a rate higher than 6 per cent, for another reason, and that was, that in every community no attention whatever was paid to the usury laws. In the State of Ohio there was no penalty for the violation of their usury laws. They will always be disregarded by commercial men, for the reason that tho rate of interest will always be regulated by supply and demand. It is, or it ought to be, a matter of contract.
The banks, as a general thing, did not want to have this law. It was to their advantage to have deposits. They generally pay no interest on deposits, and they profit 12 or 18 per cent, by holding them. Therefore he was not surprised to find those representing the banking interests on hand against the passage of such a bill as this. Was there anything wrong in allowing the smaller capitalist to loan at 10 per cent., whilst the banks make 12 to 18 page: 190[View Page 190] per cent.? Individuals in this matter were not on a level with corporations. How had the banks the advantage ? They could discount bills and notes at discretion-buy a bill of exchange at 12 to 18 per cent, discount-buy a note at discount. That was taking a greater interest than 6 per cent, by an indirection. Such, under the decision of the Courts, was the talismanic power of the word Bank. The smaller capitalist was compelled to put his money in bank at 4 or 6 per cent., because he is unable to compete with the bank in loaning: He maintained that the present rate was too small from analogy; because, when it was established, the whole volume of the precious metals of the country did not exceed $100,000,000. Since then, its volume has been increased four fold. As a proof that money was worth more than 6 per cent., where do you find a man loaning for 6 per cent.? Everything else had increased in price-lands and produce had doubled-why, then, insist on this horizontal, fixed rate on money? Should everything else progress, and this alone stand still? It was unjust, unequal, and the result of it was to drive capital out of the State. In his region, the farmers were the wealthy class, and they loaned, not to their neighbors, but in Cincinnati, &c.
Mr. BRANHAM'S proposition was, that the legal rate should be 6 per cent.; and that all usury laws be repealed, and interest regulated by contract. He intended to move a re-commitment for such an amendment. He would not have any deduction of the principal loaned, as a penalty for usury; but when the law enforces collection, let the lender collect 6 per cent. He would place the people of the State in a position to make the most of their capital.
Mr. CAMERON. Under the amendment, you codld collect but 6 per cent. That would open a door for the operations of a class of persons who would contract for a higher rate than they intend to pay. The law was made to restrain that class of men. The supply of money was not equal to the demand in the north counties. They were older and better off in the southern counties. The people demand this law in the North. His county now could get money in Chicago at 10 per cent., but if they could not give the securities, they had to go into the banks and pay 12 to 18 per cent. Was there a moral, a Scriptural rate of interest ? Certainly not. This procrustean idea had been sufficiently refuted by Mr. Bundy. It had been said, if you make it 10 per cent., the lenders would take no less. But the fact was, capital would return to the State and make money plentier. He hoped his rich friends of the South would consider-
Mr. VEATCH [interposing] was very anxious to know in what part of the State that happy land was located.
Mr. CAMERON was told by the gentleman from Martin that it was in the gentleman's county. This bill was for the benefit of poor men and money borrowers, and not for capitalists.
Mr. POLK. It becomes a question whether it is wise to allow laws to remain in the statute book that are every day wantonly violated. Such a course is not calculated to cultivate that respect which insures obedience to the laws.
The law, regulating the rate of interest, is founded upon the mistaken presumption that usury is a sin. When our laws allow any interest at all, we in effect deny the sin of usury Then the argument that the taking usury is a sin is no longer tenable among us.
But the argument that the law can regulate the price of money, cannot be so easily dig. posed of. Let us look at it. Money, as money is of no use; but as a medium of exchange, it becomes the most valuable article a man can possess. It enters so minutely into the affairs of life, in creating demands, in supplying them, and in attaching value to our products that it may readily be classed with productive capital, second only to labor, and like labor subject to the same laws.
To say that our Legislature should enact that labor should demand an equal price in all lacalities and under all circumstances, would be simply ridiculous. No one would for a moment entertain such a thought; nor would this body think of declaring that no person shall receive more than five dollars per barrel for flour. It is the same with money as it is with labor. There are times and places when and where the demand is greater; and in such cases it is worth more. For instance-the farmers of Marion county secure a rich harvest, and have a large surplus to sell. To move this surplus, money is demanded, and inducements are held out for it to flow this way. That is, a better price must be offered than money is getting at other points.
By what principle do we say that a person has no right to take for an article what he can get, or give for an article what he thinks he can afford? Surely the law can not see all the circumstances surrounding the contracting parties. It does not know that a person can not afford to take six per cent., nor that a person can not afford to pay more than six per cent.
The law regulating interest on money is rather calculated to increase the interest than keep it down. For there are conscientious and law abiding men, who, rather than take so small a price will either horde their money or send it to a better market. Hence the borrower is forced to go to those who are willing to violate the law, and for the risk they run, they must be compensated, and besides they are genrally of that class of money lenders whose consciences become seared, and will take all that the necessities of the borrower require him to give.
To take another view : When the laws do page: 191[View Page 191] not allow persons at home to receive the worth of money at home, it will go abroad for more profitable investment,-to be loaned in States where a greater per cent, is given,-or to the West, to purchase wild lands, and there lay idle to await the rise.
I cannot see why we should have any law fixing a price on money. To be sure men who borrow are liable to be shaved; but are not die renters of houses, buyers of produce, and the hirers of labor liable in the same way ? yet I look upon the present bill as an improvement on the old law, therefore, I am for it.
Mr. SMITH, of Bartholomew, said this had teen called an attempt to break down the Democratic party, and so far as that was concerned, it might be he was a Republican. He referred to the hardships of the present law, and to the fact that in the more prosperous, leading States of the Union, a conventional interest was authorized. The penalties against usury kept money out of use in this State, and it went to Illinois, Ohio, and elsewhere. He referred to the disingenuousness of bank men in 1857 on this proposition. Its passage was against the interests of the banks. He concurred in the remarks of Mr. Cameron. The amendment of Mr. Branham was not sufficient. He referred to his own experience to illustrate the advantage in borrowing money at 10 per cent.
Mr. FRASIER The gentleman's success was no argument for the bill. He took issue with Mr. Bundy, that money was an article of value like any other article of trade. It was the representative of value. If the bill, in its provisions, was confined to money lending, it would be a different thing ; but then he might vote against it. The argument that the bordering States which have adopted 10 percent. were impoverishing us was not good, for we were drawing in the interest continually, and the principal would come too, some day. But Ohio has gone back to six per cent. He hail heard it stated that the banks were averse to this bill; but he could not see why they should be, because they always had lawful interest and added exchange on all the money they give out. Then our merchants usually sell their goods on sixth months credit. Pass this bill, and no merchant would draw a note of hand with less than 10 per cent, interest. Thus the burden of the provision would be made to fall on the class of people least able to bear it. It would place the debtor at the mercy of the creditor. He was in favor of the amendment of Mr. Branham-the repeal of the usury laws.
Mr. LANE also endorsed the amendment. It was a singular argument to raise the rate of interest for the benefit of poor men. If the gentleman from Bartholomew-a sharp business man-could make money on a loan at 10 per cent., it was no assurance that other men could do it. Not many men were money-leaders, and this bill was for the benefit of those. If 10 per cent, were the legal rate, our merchants would compel the payment of that rate in all cases. The bill would benefit one man in twenty and injure all.
Mr. NEBEKER could not see how banks were benefitted under the present interest laws. If a poor man has $50 on hand, he deposits rather than loan it. He can not compete with the banks. But, it was said, the banks, if this rate is allowed, will take the greater rate. Certainly, they get what they can. The courts had decided that they may charge interest and exchange. There was no way to restrain banks by legislation against money. He wag a friend to banks, but he wanted to allow all men to compete with the banks. No man dared to plead usury against a bank, because, by the completeness of their correspondence, they could close the doors of all the banks in the country against any man they choose.
Mr. DOBBINS opposed the bill. He understood the interests of mechanics and laboring men. Increase of interest-and all interest laws, perhaps-was wrong. The six per cent. was a compromise between capitalists and laboring men. Ohio had returned to it, and Illinois was prostrated because she had not. Would an increase of interest increase the value of labor? He supposed not. But the operations of the merchants were conclusive against the bill. The hardships would fall on the consumers. It would also have the effect to increase all the evils of the credit system. The States of Ohio, Kentucky, Virginia and our own State, coming back to six per cent., was a fact, conclusive to his mind, against the bill. This question was met by him fully before the people, and they had sustained him. He did not see any force in the argument that the present interest laws were violated.
Mr. EDSON did not think it necessary to make any change in the interest laws. He referred to the cases of failure in practice of the principle of a conventional interest in other States than our own. He replied to Mr. Bundy's argument for a greater rate because there is more money. The contrary was the true principle-when money is diminished in value the rate of interest should be dimished also. The effect of the passage of this bill would be to cause every man now in debt to be sued, or give new notes drawing 10 per cent. The question was nothing to the banks now, in the present money crisis. They could not discount now. The banks and individuals were on the same footing so far as usury is concerned. No increase of interest could prevent usury by sharpers. If the principle claimed were true, there should be no restriction, but perfect free trade in money-lending.
Mr. STOTSENBERG proposed to amend, by inserting a clause to the effect, that in no case shall any person or corporation contract for or receive a greater rate of interest than 10 per cent., including therein exchange, &c.
page: 192[View Page 192]Mr. PACKARD thought the passage of the bill desirable for all-laborers and capitalists. He was for labor in preference to capital, where these interests conflict; but here was conflict: Mr Bundy had shown that the present law belongs to a period in English history too long past to be a guide for us. The principle of increasing the rate of interest did not admit of the conclusion of Mr. Edson, that there should be no restriction at all. He argued at some length against the assumption that this measure would oppress the poorer and laboring classes. All business now carried on, on borrowed capital, was by money borrowed at 10 per cent.; and when they could not get along at that rate, they stopped. There was a matter of competition that would prevent the oppression insinuated against the merchants requiring 10 per cent, on their goods. He saw nothing in favor of Mr. Bran-ham's amendment. He was for Mr. Stotsenberg's amendment. He believed in restricting corporations. He insisted that there was an intense demand for this bill, and that therein was a good argument for it. Let us at least try the experiment. When it was replied that we had tried it, he insisted that it was not tried when the resources of the State were developed as they are now. Let us try the rate that our sister States are trying with advantage, and keep our capital at home.
He gave way and the committee rose, reported progress, and asked and obtained leave to sit again.
THE "CALL" OF YESTERDAY.
Mr. STOTSENBERG. The sergeant-at-arms desires me to inform the House that he has several members in his custody, under the warrant of the Speaker, and desires to be informed what he is to do with them.
After several humorous passages between the Chair, Messrs. Gresham, Smith of Bartholomew, McLean and others-
On motion by Mr. FRASIER, the absentees were discharged, upon payment of costs.
On motion hy Mr. VEATCH, (by consent,) his bill [62], for five additional bank districts, was taken up, read the second time, and referred to the Committee on Banks.
EXTRA SERVICES OF SHERIFFS AND CLERKS.
This subject (Mr. Nebeker's bill, No. 8) was again taken up, and Mr. Bundy's amendment laid on the table-yeas 69, nays 16-and the question recurred on concurrence in the amendment submitted by the minority of the Committee on the Judiciary.
The House then adjourned.
IN SENATE.
FRIDAY, February 8,1861.On motion by Mr. MURRAY, the reading of the journal was dispensed with.
Mr. O'BRIEN presented a petition, which was referred to the Committee on Corporations without reading.
QUALIFICATIONS OF VOTERS.
Mr. WHITE, from the Committee on Elections, returned Mr. Landers' bill, S. 47-see pages 63, 96 and 97 of these Reports, recommending passage, with an amendment requiring a voter to reside in the State six months preceding an election, and not less than thirty days in a township or ward, in all elections except the April election ; for that, leaving the law as it now stands.
Mr. CARNAHAN. That is worse than though it operated the other way. It is in the fall season that young men who work out and labor near the township lines, change their residence more often than in the spring of the year, and I am opposed to the amendment on that ground.
Mr. LANDERS. The amendment is not in accordance with my notions, although I consented to it. I differ with the Senator from Posey: I think the moving generally takes place in the spring, and in the fall there is but little emigration except for the purpose of carrying elections. We cannot expect to make a law that will meet every case.
Mr. BLAIR. Any bill that is designed to protect the purity of the ballot-box should protect the April election as well as all others: for it is at that election men are chosen who control the ballot-box at every other election. There is a bill which I introduced, containing several other provisions with regard to conducting elections, and I think it proper that these two bills should be got together, in order that the Committee may make up a bill which will as effectually protect the ballot-box as possible. I move to re-commit the bill, with the pending amendments, to the Judiciary Committee.
The motion was agreed to.
REPORTS FROM THE JUDICIARY COMMITTEE.
By Mr. STUDABAKER: Returning Mr. Dickinson's bill, S. 25-see page 30-with an amendment, recommending passage.
By Mr. SLACK : Returning a resolution inquiring by what right the darn across the Calumet river, at Blue Island, in the State of Illinois, is maintained: reporting that the question submitted is one of intricacy, that the Committee have not the time nor means to investigate the subject satisfactorily, and recommend that the subject matter of the resolution be referred to the Attorney General, whose opinion thereon will no doubt be satisfactory and conclusive.
By Mr. CRAVEN: Returning Mr. Line's bill, S. 54-see page 69-recommending passage, with an amendment that no allowance be made only upon a claim filed, accompanied with a certificate of the clerk of the court, that the convicted party is insolvent; and an additional section that such attorney shall receive no compensation except as provided in this act, and on failure to appear, shall receive no fees, and the court or justice shall appoint a substitute, and that all other instructions be laid page: 193[View Page 193] upon the table. Also, returning Mr. Wilson's bill S. 42-see page 30-recommending that it lie on the table.
Mr. RAY, from the Committee on the Organization of Courts, returned Mr. Conley's bill S. 42-see page 69, recommending indefinite postponement.
Which reports were severally concurred in
COURTS OF CONCILIATION.
Mr. CLAYPOOL, from the Committee on Organization of Courts returned Mr. Slack's bill [S. 2-see page 12] recommending passage.
Mr. MARCH. This bill proposes to repeal an act which has been upon the statute books since 1852. An attempt has been made to repeal it at every session since, and at every session it has failed. The object of that statute is to prevent litigation, and in these times when we are talking about compromise and peace I trust we will set an example at home upon a little question like this.
Mr. RAY. I pronounce the whole provision a humbug and sham; it was so from the be-ginning, and is so up to this time. It never was a provision that promoted the peace and harmony of society, nor is it intended to cut off in any degree litigation or the fees of attorneys, but instead of being promotive of right and peace, it amounts to a denial of justice. I have never known an instance where a mertorious case was compromised in this way. It is a regular star-chamber performance.
[A message from the House announced the passage of the Cravens bill [S. 74] to fix the time of holding the circuit courts in the seventh judicial circuit.]
Mr. CLAYPOOL. This is an importation from the Yankee land, and is to be avoided. You make the court of Common Pleas the purchased lawyer of both parties-a regular monkey nibbling the cheese upon both sides. In my district, no case has been compromised under this statute; it simply enables parties to drag individuals before the court, and by a little closed-door palavar, send them out with ft five dollar bill in the pocket of the judge, and malignant feelings rankling in their bosoms.
Mr. MURRAY. It is enough for me to know, as a Senator on this floor, that that law was placed upon the statute-books for the pur pose of keeping out litigation from the courts. Have you a single petition coming from the people asking its repeal? I never heard of such a thing. I think it is just as convenient for parties to come before the court of conciliation, and there litigate from court to court through a term of years. Lawyers have an interest in this matter, or they would not be in favor, year after year, of repealing the law. I hope this Legislature will imitate past Legislatures, and vote down this bill.
Mr. MARCH. If the Senator from Fayette ever had the benefit of a Yankee school education under a birch stick, he would have learned that there never was a court in that country. I venture that if a vote of the people could be taken, it would be the voice of ninety-nine out of every hundred. Let it stand. It is the break-water to litigation. I look upon it as the worthiest feature upon our statue books. I think it holds out the banner of peace.
Mr. JOHNSON. Whenever I think a law is an injudicious one, I shall vote to repeal it, but whenever I think a law acts beneficially, I shall vote against its repeal. In my own county but one case has come within the scope of this law, but I know of several cases that have been settled by it, where they might have been litigated for years. I shall vote against the repeal of the law.
Mr. LANDERS. I am convinced of the propriety of still retaining the law. I see no necessity for its repeal, I have heard no complaint in my section of country, therefore I am inclined to vote against the report. While a law is working well, there is no necessity for its repeal.
Mr. SLACK. I cannot see why Senators will vote against concurring in this report when the universal testimony, almost of any one who has any experience with reference to the workings of this law, are averse thereto. There is not a practicing attorney on this floor who will say any good ever came from this law except the Senator from Delaware whose bantling it is. I hope the law will be unconditionally repealed, for no good can come out of it.
Mr. FERGUSON. If we undertake to suppress all humbugs, we have taken upon ourselves an endless task. Humbuggery may get into the legislative halls as well as into courts of conciliation. If this court prevents one law suit out of ten, I consider it has served -a useful purpose. I take it the law does not work injustice enough-I cannot say it works injustice to all-it cannot be so injudicious a law as to require repeal. I shall therefore vote against the repeal of this law.
Mr. WOLFE. When this law for the establishment of courts of conciliation in the State of Indiana was first enacted, I had but a single objection to it, and that objection has increased somewhat. The only objection I had was in regard to the fact that it permitted sharp, shrewd, calculating men to have an advantage over a plain common man. We all know however honest a judge may be, he must decide upon a case according to the facts as they are related, and a sharp man can always get the advantage of a plain common man in making a statement. I am not satisfied with an amendment which would confer such favor upon clerks of courts. The objection I think is sufficient to warrant me in sustaining the report of the committee.
The Senate refused to concur in tho committee report.
Mr. STUDABAKER. I move to recommit page: 194[View Page 194] with instructions to so amend the bill as to repeal the 10th section of the act constituting the court of conciliation. I am willing to compromise this matter by not compelling parties to go into it. My knowledge of the court is that it is about as much humbug as anything else, and a large share of cases taken there are without any cause that would justify a litigation. If the 10th section was repealed they would not think of going into court to litigate such matters as that, and since the common pleas districts are so large it will be inconvenient to get a judge to hold such courts.
Mr. MARCH. The Senator's proposition nullifies the law without stating it 'on its face. It is a very adroit move to throw dust into the eyes of gentlemen and get it voted down.
On motion by Mr. CARNAHAN, the bill and pending amendments were indefinitely postponed-yeas 22, nays 17.-as follows:
YEAS-Messrs. Bearss, Beeson, Carnahan, Conley, Ferguson of Hamilton, Hull, Johnson, Jones, Landers, March, Miller, Murray, Odell, Robinson, Shields, Steele, Stone, Teegarden, Turner, White, and Williams-22
NAYS-Messrs. Anthony, Berry, Blair, Claypool, Conner, Craven of Madison, Dickinson, Grubb, Line, Lomax, Newcomb, Eay, Shoulders, Slack, Studabaker, Wilson, and Wolfe-17.
REPORTS FROM COMMITTEES.
By Mr. CONNER: Organization of Courts-returning a resolution inquiring into the expediency of abolishing the grand jury system, with a report that no further legislation is necessary.
By Mr. DICKINSON: Same-returning a resolution, inquiring into the expediency of abolishing courts of common pleas, and establishing a surrogate system for probate business, recommending that it be indefinitely postponed.
By Mr. HULL: Roads-returning Mr. Lo-Lomax's bill, S. 27-see page 30-recommending that it lie on the table, as existing laws embrace its object.
Mr. BEESON : Agriculture-returning Mr. Conley's bill, S. 80-see page 93-recommending that it lie on the table.
Mr. DICKINSON, from the Select Committee thereon, reported a bill [S. 148] to provide for the election of United States Senators, and defining the duties of certain officers thereto, which was read the first time.
Mr. STEELE, from the Lincoln Reception Committee, reported that the President elect would leave his home at eight o'clock next, Monday morning, arrive at the State Line at 12:30, arrive in Lafayette at 2:30, and arrive in this city at 5, by special trains all the way; and that they intend to publish a programme in the morning papers to be observed on that occasion.
Which reports were severally concurred in.
[Mr. JONES offered a resolution, which was adopted by consent, instructing the Judiciary Committee to inquire into the expediency of amending Mr. Landers' bill. [S. 47] so as to make betting on elections disqualify a voter.]
NEW PROPOSITIONS.
The following bills were introduced severally passed the first reading, without'objection :
By Mr. LINE: [149] To authorize superintendent or other person having charge of county asylums for the poor, to discharge in mates from the same on certain conditions; and to apprentice minors therein.
By Mr. CLAYPOOL: [150] To amend sections 4 and 7 of an act to provide for the election, fixing the compensation, and prescribing the duties of Attorney Generals of the State of Indiana; approved February 21, 1855.
By Mr. DICKINSON: [151] To amend an act approved March 5, 1859, to amend section 42 of an act to establish courts of common pleas, &c., approved May 14, 1852, so as to regulate the docket, and for the disposal of business thereof.
By Mr. DICKINSON: [152] To amend an act to provide for the return" of the jury for the common pleas court on the third day of the term, approved March 5 1859, so as the jury may be returned on the second day of the term.
By Mr. CARNAHAN: [153] For the relief of Catherine P. Whittlesy, and to vest in her certain real estate of John Liridsey, which has escheated to he State: rules suspended-yeas 24, nays 1-read the second time by title only, and referred to the Judiciary Committee.
By Mr. TEEGARDEN : [154] To amend section 4 and repeal section 7 of an act concerning interest on money ; approved May 27, 1852.
By Mr. MILLER: [155] To amend an act defining felonies, and prescribing punishment therefor; approved May 10, 1852.
By Mr. RAY: [156] To regulate the descent and distribution of property of adopted children.
By Mr. MARCH : [157] To amend sections 1, 11 and 12 of an act to exempt property from sale in certain cases; approved February 17, 1852.
By Mr. GRUBB: [158] To amend section 1 of an act to concerning interest on money, approved May 27, 1S52, so it may be ten per cent, by written contract.
CLINCHING THE RULE FOE, BUT ONE SESSION A DAY.
Mr. MURRAY moved to re-consider the vote by which the resolution was adopted, providing for but one session of the Senate each day.
On motion by Mr. ANTHONY, the motion to re-consider was laid on the table.
POLL TAX FOR COUNTY PURPOSES.
Mr. Wolfe's bill [S. 57-see page 69 of these Reports]-being read the third time-
Mr. HAMILTON moved to re-commit, so that the tax shall not exceed 50 cents on the 100 dollars.
