IN SENATE.
WEDNESDAY, February 16, 1881--10 a. m.The LIEUTENANT-GOVEROR announced the special order--being the consideration of the Joint Committee on Revision's bill [S. 271] embracing the Civil Code, which, because of its great length, has not been read except twice by title only.
On motion by Mr. Comstock it was ordered that only such sections be read as are proposed to be amended.
Mr. WILSON moved to amend Section 38 by a1lowing the plaintiff or his attorney to select the newspaper in which his legal notice shall be printed.
Mr. LANGDON feared the section would exclude newspapers not wholly printed in the County.
On motion by Mr. CHAPMAN, the amendment was amended so as to obviate this objection, and so as to provide that the paper shall be printed in the English language.
The amendmend as amended was agreed to.
Mr. Urmston moved to amend Section 136 by providing that in the absence of the Judge restraining orders or injunctions may be issued in vacation or in term time by the Judge of an adjoining Circuit, and the same shall operate with like effect as if issued by the Judge of the Circuit. There are many cases in which it will be impossible to get a restraining order without this amendment. He thought it unnecessary, as provided in another section, that a Master Commissioner shall be appointed in every Circuit in the State, as but few Counties are large enough to need such an officer.
Mr. VIEHE saw the necessity for legislation on this subject. The Committee concluded the most convenint way would be to have a Master Commissioner appointed in every County seat which is most convenient to send away for a Judge who may not be at home, or have a person resident in the County seat with power to issue such writs.
Mr. BELL was willing to take the work as prepared by this Committee, regarding it as impossible for the Senate to comprehend the whole matter from the readings here,as the Committee has, after mature deliberation.
Mr. URMSTON (replying to Mr. Viehe)said it was not often restraining orders or injunctions were demanded, and in such cases it would incure less expense to go to a Judge in an adjoining Circuit than to salary a Commissioner is each County.
Mr. VIEHE said these Master Commissioners would get fees like a Notary Public, and so as far expense incurs it would make no difference.
The amedment was rejected.
Mr. WILSON moved to amend by add to Section 140 the words "and examine witnesses orally" on an application for an injunction. He gave illustrations where this amendment would prove a great convenience and large saving of time.
Mr. BELL feared this amedment would, in many cases, make practically two trials; and the inconvenience would greatly overbalance the convenience.
The amendment was rejected.
Mr. Henry moved to amen by providing for hearing applications for temporary restraining orders or injunctions, only.
The amendment was agreed to.
Mr. WOOD desired to amend so that the Court in its discretion may hear oral evidence.
Mr. VIEHE did not understand that this section prohibits oral evidence if the Court chooses to hear it.
Mr. WOOD could see nothing in the section that would imply that the Court can hear oral evidence. He desired that made plain.
Mr. CHAPMAN cited an instance where, as Section 156 proposes to leave the law, a debter contemplating defrauding creditors, whose indebtedness is not matured, may dispose of his property for the purpose of defrauding his creditors, and they are left powerless to stop such fraudulent proceedings.
Mr. LANGDON believed that part of the code covering proceedings in ne exeat would contemplate just such a case as that.
Mr. BROWN moved to amend by adding a proviso that the plaintiff shall be entitled to an attachment for the causes mentioned in the second, fourth, fifth and sixth specifications of thie Section, whether his cause of action is due or not.
Mr. LANGDON objected to these extraordinary provisions, and insisted there was sufficient legislation on this subject in Section 664.
Mr. HENRY regarded the argument as applying only to ne exeat proceedings in writing.
The amendment was agreed to.
page: 189[View Page 189]Mr. BROWN would like to know why a party is required by Section 207, to state what his cause of action for defense is when applying for a change of venue?
Mr. VIEHE stated: This clause is as the law now stands, and which ought to be allowed to remain.
Mr. BROWN did not think it did credit to the Legislature enacting it, and moved to strike out all that relares to specfying cause of action or defense.
Mr. VIEHE felt inclined to support the amendment, as the clause referred to practically did no good.
Mr. HENRY would like to see adopted a further amendment, making the reasons apply to all applications for change of venue.
Mr. VOYLES would oppose such an amendment. It would seem that it was injustice to demand s statement of the cause for defense when praying for a change of venue.
Mr. BROWN was more and more convinced that such an amendment ought to pass, for it takes out of the mouth of the Judge to pass beforehand pn the merits of the applicant's defense. The spirit of our law is when a man puts his conscience and oath together and says he ought to have a change of venue, he ought to have it.
Mr. MENZIES hoped the amendment would not prvail. The Legislature of 1877 recognized a poor class of suitors who were denied justice by being dragged out of their Counties in small cases, where they would abando their suits rather than go for trial thirty or forty miles to another County. This enactment stopped the outcry; and where is the evil or outrage that has occurred under this amendment? Until that is shown, the law had better remain as it is.
ADDRESS BY MR. COLFAX
A recess of ten minutes was ordered as a compliment to ex-Vice President COLFAX, who spoke substantially as follows:
SENATORS--I thank you for this welcome to your Chamber, which brings before me vividly my association with the Indiana Senate in the old State House, thirty-six or seven years ago, before I had even grown to manhood. As I speak to you, its membership comes before me. In the President's chair, at the right side of which was my reporter's table, sat Lieutenant Governor Bright, presiding over a Senate, politically tied then as now, and who, with that fearlessness and will which even his enemies conceded, postponed by his casting vote the Senatorial election to the next session, which then elected him to the vacant chair in the United States Senate. In the back row of seates was the veteran John Ewing, of Vincennes, able, cynical and sarcastic, who always boasted of representating old Knox, "the mother of Counties." Near him, from the District now represented by my friend, Mr. Leeper was the diplomatic Defrees, not now an Indianian, but filling with marked ability a very responsible position at the National Capital; and also, the persuasive Kilgore, with the Quaker-representing and Quakerish Holloway, both afterward in Congress. On the Democratic side I remember as well of the outspoken and irrepressible Walpole, and the dignified Senator from Johnson, Dr. Ritchey, now living in Senator Major's District, who in the darkest hours of our State finances, when we could not pay even the interest on our great internal improvement debt, inaugurated the legislation which gave to us the Benevolent Institutions around this city, of which, as Indianians, we are so proud, insisting of taxation for the betterment of the condition of our insane, blind and deaf.
I can not close without alluding to a speech I heard at that time in the old Court House--the predecessor of the magnificent building in which you are sitting--by ex-Governor Ray, in which he predicted, although there was none then but bottomless mud roads leading hither, that Indianapolis, would, within thel ifetime of some who heard him become the greatest railroad center of the inland cities of the Union, from which railways would diverge in every direction like the spokes from the hub of a wheel. Though this prophecy was sneered at by the two venerable Senators who accompanied me to hear it, it has been verified most remarkably. And if thirty odd years have brought about such wonderful development and progress, who can limit or forcast what may be our future in thirty years more, if your Senators and your successors are faithful to all the interests the people have placed in your hands. And thanking you, one and all, for this friendly and complimentary reception, I will not longer detain you from your Legislative duties.
Then came a recess till 2 o'clock.
AFTERNOON SESSION.
On motion by Mr. SHAFFER, the joint resolution [H. R. 1] looking to the reconstruction of the Wabash and Erie Canal by the General Government, was taken up and read the third time.
Mr. SHAFFER said the money has already been expended, for the survey, and a report has been made to Congrass. The work is of great importance as tending to cheapen transportation, and wil1 greatly benefit the portion of the State through which the canal passes.
Thejoint rsolution passed by yeas, 34; nays, 0.
Mr. MENZIES regarded the reasons given for this amendment as imaginary.
Mr. SPANN objected to the amendment, because it goes to all specifications in this section. Hardships may arise under it, should it become a law.
Mr. WILSON moved to strike from the amendment the words "which shall be specifically set forth," so the applicant can state the conclusions, and not be required to state the facts.
This motion was agreed to upon a division--ayes 21; nays, 22.
Mr. CHAPMAN had little respect for changes of venue, believing they were seldom asked for to advance the causes of justice. He saw no particular safeguard in the amendment. If it tended to defeat changes ov venue he would favor it, provided no wrong would grow out of it.
THE CIVIL CODE
The Senate resumed the pending order.
Mr. BELL did not think this amendment would affect Railroad Companies materially one way or the other, or if it did that should not influence votes one way or the other. There ought to be changes of venue granted in places where odium attaches or prejudices exist against the defendant. Laws should be enacted not to cover exceptionable cases, but such as will apply the best in the greatest number of cases.
The amendment was agreed to by--yeas, 24; nays, 21.
Mr. HENRY moved to amend by adding that in any application for change of venue from the County, the applicant shall also state in his affidavit that he has a good and meritorious cause of action or defense which shall be specifically set forth therin.
Mr. BELL opposed this amendment.
Mr. HENRY replied to objections.
Mr. BROWN referred to the fact that there was no such thing as change of venue at common law, but practice in American Courts proceed upon the assumption that we are in advance of our ancestors. If the change of venue is right, it is wrong to throw impediments in its way.
The amendment as amended was rejected by yeas, 13; nays, 35.
Mr. CHAPMAN moved to amend so that the applicant shall state in his affidavit the facts out of which such odium and local prejudice has arisen. page: 190[View Page 190] The affidavit should state something more than a mental conclusion, or something intangible, and he insisted that the statement should embrace some facts.
Mr. VIEHE opposed the amendment because it is impracticable. In nine cases out of ten where there is a prejudice existing against a man, the man himself cannot tell why.
Mr. CHAPMAN, out of deference to the solicitude manifested on the other side of the House, withdrew his amendment.
Mr. WILSON referred to the many inaccuracies in the printed pamphlet purporting to show the amendments proposed by the Revision Committee, declaring it to be so full of errrors that the Printer ought to bear the expense of reprinting the book correctly.
Mr. FOSTER looked upon this as one of the most important matters to come before the Senate, and no Senator can act wisely on the printed documents before us. He moved to postpone the further consideration of the civil code till Mon- day, at 2 o'clock p. m., so that 150 copies of the amendments as proposed by the Revision Committee can be printed.
The motion was rejected.
Mr. CHAPMAN moved to limit the period within which actions may be brought on bills of exchange, promissory notes, mortgages and other contracts in writing, for the payment of money hereafter executed, to ten years. He insisted men ought not to have such things hanging over them so long.
Mr. COMSTOCK opposed the amendment. The matter was considered carefully by the Board of Revision, and such an amendmet would involve the reconstruction of other Sections of the code, and thus cause delay.
Mr. CHAPMAN did not propose to take this work as it comes from the Board of Revision or the Revision Committee. The General Assembly should give careful and deliberate consideration to every amendment proposed. Indeed we should consider all of the Code, for it passes theoretically, at least under our eyes and our judgment; whether any amendment works delay is not to be consider for a moment. The only question should be: Is the amendment judicious? If so, it should be made; if injudicious, it should not be made.
The amendment was rejected.
Mr. KRAMER saw no reason for changing the time in which men are bound on official bonds. He moved to amend by striking out "five" and inserting "three" in lieu. We have got along well enough under the law making it three years. In many Counties it is a hard matter for officials to get bondsmen, and if the term of liability is extended to five years it will make it still harder.
Mr. VIEHE gave reasons why the time should be extended to five years-where an officer is his own successor, he will declare the defalcation occurred during his first time, and so escape.
Mr. WILSON moved ineffectually as an amendment to the amendmet to extend the time to ten years.
The amendment was also rejected.
On motion by Mr. MENZIES, Section 784 was amended by providing that damages for injury resulting in death can not exceed $10,000 and must inure to the exclusive benefit of the widow and children, if any, or next of kin.
The Senate adjourned till to-morrow.
