THE WILL CASE BILL.
Mr. Dittemore's Will case bill [H. R. 235] was then taken up.
Mr. PIERCE of Vigo took the floor with an apology for the time this case has consumed, and with justification for the range of debate which he had taken, because of the reference of the gentleman from Lawrence (Mr. Dunn) to a certain printed brief called the Burton Will Case, and because, as he believed, the passage of this bill would not be urged now, but for the pendency of this will case. For this bill was specially designed to allow these parties to come in again with their action for this property, the right to which has been settled for four years. He submitted whether we have any right to pass a law which will livest these children of their vested rights; and he insisted that we have no such right, and that if passed the act must be nugatory. He suggested the difficulties about the fairness and justice of a new trial of this case now that it is impossible to recover he facts and witnesses in the case. He contended also that there was nothing on the part of those parties desiring to re-open his case, that could justly demand this legislation.
page: 189[View Page 189]Mr. JOHNSTON, of Parke, took the floor in reply to Mr. Pierce and in explanation and justification of the vote he intended to case for the passage of the bill. He stated the object of the bill - to secure and save to those parties the vested rights of which they are divested by the act of 1865. Gentlemen who are not lawyers might be deceived by the argument of the gentleman from Vigo to show that this case was dismissed because the transcript was not filed. He showed that in the act of 1865 there was no saving clause for parties to cases then pending. Every lawyer knows that at time the trial of a case before the Common Pleas was with the right of appeal to the Circuit Court, and for that reason parties would not be careful to plead exceptions to the rulings of the court in the case, the instructions to the jury, &c. And if he could go out of the case, he could assign other reasons for voting for this bill. There was no proposition in the bill to repeal the act denying appeals from the Common Pleas to the Circuit Court, but simply a provision to allow these parties to this case, pending when the act of 1865 was passed, to go into the Circuit Court for trial. He went more at length into the argument, insisting that the pending bill is founded on the simplest appreciation of common sense and common justice in this case - to restore to parties the rights which the Legislature have taken away from them.
Mr. WILLIAMS of Hamilton, demanded the previous question; but no quorum voting on the question for a second to the demand, a call of the House was ordered, and then the House refused to second the demand for the previous question.
Mr. COFFROTH then took the floor for the passage of the bill, considering questions of law involved, and answering objections urged by gentlemen opposing the toll. He showed that the right of appeal from the Common Pleas to the Circuit Court, which existed at the time of the passage of the act of 1865, would certainly lend to laxity in attending to any case on such trial, and it was simply a question of the right of parties to a restoration of their rights taken away by the act of 1865. To the suggestion of Mr. Pierce that witnesses are dead, and that it would be impossible to have a fair trial now, he replied that witnesses are dead on both sides, and there was the recourse to their written testimony. By way of replying further to Mr. Pierce he recounted the story of the life and thrift of John Burton and his wife; the widow being largely entitled to the property, because of her efficiency in procuring it, under the hard working of the law is excluded from it in her heirs - her children before her intermarriage with Burton: and her children would have been thus entitled under the will of John Burton. Was not that a good and proper will? He must say that the jury that could set it aside, must have been misled. The justice of this case was all in favor of the child of John Burton's widow. He then spoke to the objection, that the Burton will case was not pending in 1865, when the act passed. If that were so, then this bill would not affect the Burton case. Would any man say, if the act of 1865 were now pending-now on its passage here-that it would not be right to save pending suits? To save pending suits and vested rights was a common thing in Legislation. True, he voted for the act of 1765-just as others do frequently, in the stress of business, and when no question is raised. He did not know under what influences the act of 1865 came here and was passed. It was true that it was drawn by one of the attorneys-the principal attorney, Colonel J. Baird-and brought here by him just after this case was tried, but, of course, with no purpose to affect this case. With reference to the objection that this Burton case was not opened in the Circuit Court on occount of the act of 1865, but on account of some discrepancy in the papers, he said this difficulty with reference to the papers could have beer avoided simply by a ruling-an order of the Court. But the fact was, the case was not brought by appeal to the Circuit Court, because it was forbidden by the act of 1865.
Mr. WELBORN discussed the merits of the bill, without reference to the Burton case-the only question being: Should we pass a bill to give new trials to parties with casses pending in the Common Pleas when the act of 1865 was passed. He showed, that if, in this Burton case, the appeal had been perfected at the time of the passage of that act of 1865, the trial could not by that act, have been prevented in the Circuit Court. It was but special pleading to say, that parties having the right to appeal do not attend to their business. The fact that the members of the Legislature of 1865 knew nothing of the Burton will case, should weigh against the passage of this bill. To vote for this bill was to vote for a law suit-a big one-involving $75,000-and for the accommodation of interested lawyers. He urged that the House should not, by the passage of this bill, invite numerous and expensive law suits all over the State.
Mr. KERCHEVAL demanded the previous question, arid under its operation the House House refused to concur in the report of the minority of the committee, without a division, and the question recurred:
Shall the bill be ordered to the second reading.
Mr. OSBORN moved to amend, by providing to this effect: That in any case af page: 190[View Page 190]fected by this bill, where the witnesses at the first trial can not be had, and where the testimony at the original trial was taken and preserved, such testimony shall be competent on the new trial.
Mr. COFFROTH said, the law is plain and ample on that subject. It is competent to-prove what was testified on the former trial.
Mr. OSBORN. It had been said, that this bill was not offered here because of the decease of witnesses. And if this Burton case is to be put back where it was before, it ought to be put as nearly as possible in the same condition that it stood originally. It was known r that before this bill was offered here, important witnesses in this case had died. The gentleman from Huntington says it is competent to prove what was testified. Still he desired to place in the hands of parties the same testimony that was originally introduced, and let it be adduced on the new trial. It is no more in the interest of one party than the other. He understood that this testimony on the original trial was taken down by a disinterested party, and that it has been preserved; and the object of this amendment is to obtain to perpetuate the testimony of such witnesses as cannot be produced. Then, if this is a cause of justice and equity, what harm can be done by the amendment. It is pretended that this bill is not offered to gain anything by the death of witnesses. But, were these witnesses now living he did not believe this bill would have been brought in here. This testimony is to perpetuate the testimony on both sides which was adduced on the first trial.
Mr. COFFROTH insisted that the law is ample in its provisions for such cases. But this amendment proposes to go further, and introduce to the jury the notes taken by the lawyer in the case-unattested, unsworn to. He did think that such a rule would be a dangerous one.
Mr. OSBORN. Of course, the person that took the notes would have to swear that they are correct.
Mr. COFFROTH. It did not make it any better than the, existing provisions of the law. And on his motion the amendment was laid on the table. He then moved to suspend the constitutional restriction, that the bill may be now put upon its final passage-and the vote resulted-yeas 64, nays 21.
The SPEAKER held that the constitutional restriction can not be suspended without the concurrence of of 67 members - two-thirds of the members elect - the House in the meaning of the Constitution.
Mr. COFFROTH said the constant ruling here had been, that two-thirds of a quorum is sufficient to- suspend.
Subsequently-after debate on this of order-a reconsideration and re-vote the motion to suspend resulted-yeas 65 nays 24.
On motion of Mr. COFFROTH, the bill was then read the second time, and passed to the third reading to-morrow.
Mr. PIERCE, of Vigo, proposed to amend by a provision, that this act shall not affect nor apply to any case which was not pending in the circuit court at the time of the passage of the act of 1865, nor to any case in which the law had not'been complied with, and the appeal fully perfected.
Mr. COFFROTH. Is not that the bill now?
Mr. PIERCE. It goes further than the fact that it was pending. There may have been certain things neglected which parties should have done to perfect their appeal. It is to provide that this act shall not apply to any case where the appeal was not perfected.
On motion of Mr. COFFROTH, the amendment was laid on the table, and on his further motion the bill was made the special order for Monday morning at 9 o'clock.
Mr. RUDDELL desired to advance on the calendar his bill [H. R. 4] to enable cities to aid railroads, which had been modified and almost destroyed by the committee, and was now numbered 132; but enough of the original proposition remained to make it desirable to have it pass. But there was objection.
