THE CVIL CODE.
When Section 1 of the acts of 1853, p. 92, was read, authorizing the appointment of Master Commissioners in each County--
Mr. URMSTON entered his protest against the adoption of this section. The work we are now engaged in is one proposed to take the place of the old practice act, so that we may have in force a practice act codified and revised in such a form that the people may know exactly what the statute is. This practice act should cover every emergency made necessary by the statutes. This bill leaves out many features that should be embraced.
Mr. COMSTOCK assured the Senator the law of 1853 was in this bill, and this section is one proposed to be amended by the Revision Committee.
Mr. URMSTON insisted the proper officer to apply for restraining orders and injunctions was the Judge and not the Master Commissionres. Cases where such writs are desired where the Judge is absent or unable to attend to business are rare, and there would be less expense attending an application to the Judge of an adjoining County than to appoint a member of the Bar in every County seat, clothed with such power. Competent attorneys will not accept the appointment under the surrounding circumstances.
On motion by Mr. SPANN the section was amended so as to require that the Master Commissioner shall be a resident of the County seat.
Mr. GARRIGUS moved to further amend by leaving it discretionary with the Judge, whether to appoint or not.
Mr. VIEHE preferred it should remain mandatory as in the section.
The amendment was rejected.
Mr. VIEHE moved to insert at the beginning of Section 8 the words "when the office of Judge shall be vacant or absent, the Master Commissioner shall possess power to grant restraining orders, etc."
Mr. WILSON moved to strike out Section 8, believing that there is too much of the spirit of jealousy among members of the Bar to place such power in the hands of any one of them.
Mr. VIEHE insisted upon the importance of this provision--it only grants temporary power.
Mr. URMSTON was sure this section does not meet with the consideration it deserves. He referred to a difficulty which would arise in a County where there are Judges of Superior Courts.
Mr. VIEHE replied the whole controversy would end in a few days, on the arrival of the Judge. Or the Judge has it in his power to dissolve injunctions.
The motion to strike out was rejected.
The amendment [Mr. Viehe's] was adopted.
Sections 538, in relation to validity of executors' or guardians' sales, being read--
Mr. BUNDY moved to amend by adding to the second subdivision these words: "Or has accounted for the proceeds of such sale." Whether he gave bond or not the sale ought not to be invalid, he said.
Mr. LANGDON opposed the amndment.
Mr. VIEHE could see no harm to arise from it, if he understood the amendment.
Mr. MENZIES reminded the Senators that the Supreme Court has decided as the amendment proposes, so why cumber the statute with it?
page: 196[View Page 196]The amendment was agreed to.
When Section 565, relating to orders for supercedeas was being read--
Mr. HENRY preferred the section as in the present law and moved to substitute the words, "a certified copy," for the words, "a certificate."
Mr. WILSON reminded the Senators that the present law simply lncreases the expense that would be obviated by the amendment proposed by the Revision Committee.
When Section 1, acts of 1879, relating to instructions of the Court and Jury trials, was read--
Mr. VOYLES moved to sitrke out the proviso allowing the Court to give other instructions at the close of the argument. The section seems to be sufficient without the proviso. It goes far enough after giving opportunity to attorneys the right to present their case. To let the Court give other instructions would defeat the instructions upon which the argument was based. The law should be left as it was submitted to the attorneys.
Mr. CHAPMAN was in accord with the amendment. But there is a limit to endurance, and inasmauch as some members of this body have to give their time to night work on Committees--it was nearly 12 o'clock last night when the Judiciary Committee adjourned--and inasmuch as the Senate is not in a fit condition to consider these matters as they should be considered, he moved that the Senate do now adjourn.
The motion was agreed to.
And so the Senate adjourned.
