THE CIVIL CODE.
Pursuant to order adopted day before yesterday morning, the Senate proceeded to the consideration of the civil code bill [S. 271], concerning procedure in civil cases, commencing at Section 860.
Mr. VAN VORHIS moved to amend and Mr. HEFFRON moved to strike out the closing sentence of Section 455. He said: "That is unnecessarily incumbering the record. Powers of attorney frequently include many powers, and this clause would require the attachment of the entire power of attorney to the judgment."
Mr. COMSTOCK could see no great dfficulty in complying with the requirement of the clause proposed to be stricken out. He moved to reject the amendments.
This motion was rejected.
Mr. Bell offered a substitute requiring such fact to be noted on the margin of the execution and the power of attorney to be recorded in the Recorder's office.
Mr. LANGDON opposed the amendment. It would cause a useless incumbering of records.
Mr. SPANN considered the Recorder's office the proper place for preserving these records, unless an extra book be provided for use in the Clerk's office.
Mr. BELL--The object is to protect innocent purchasers, and the record should into the Recorder's office.
Mr.FOSTER noticing that no two lawyers were agreeing in their speeches on this section, he believed it better to let the section stand.
The substitute was agreed to.
Mr. GRUBBS offered an amendment to the seventh subdivision of Section 353 of acts of 1867 so as to make provision for the relation of guardian.
Mr. HENRY thought the section should be further amended in reference to the competency as a witness of the guardian.
Mr. BELL conceived every case referred to in the amendment is already covered by the bill.
Mr. VIEHE referred to a subsequent provision having reference to the competency of the guardian as a witness.
The amendment was rejected.
page: 218[View Page 218]Mr. MENZIES moved to strike out the subdivision of Section 10 because of the uncertainty of the party establishing his side of the issue by a preponderance of the evidence. It would permit the doing indirectly what can not be done directly.
Mr.LANGDON understood the policy heretofore has been to allow all proper evidence of all parties to go to the Jury. The motion, if agreed to, would leave the law too broad. In many Courts, in such cases, the rule that maintains is not uniform, whereas the rule should be fixed and absolute.
Mr. MENZIES knew of no rule of procedure that works perfect justice. The old law has worked hardships, but has been a good rule. The effect of this section is to open wide the door for witnesses against a dead man's estate.
Mr. LANGDON contended the bill as it now stands requires material points to be substantiated by the claimant, and is a much better protection than the discretion of a nisi prius Court. It is fairer to a dead man's estate, and fairer to the claimant.
Mr. BELL'S judgment was that it is better to adopt the amendment and add to the following section words allowing the Court to require testimony to be given.
The motion to strike out was agreed to.
Mr. MENZIES (for Mr. Grubbs, who occupied the Chair,) moved to amend by adding a proviso that no agent, in making a contract with a decedent, shall be a competent witness as to matters occuring previous to death, etc.
Mr. VIEHE opposed the amendment.
Mr. CHAPMAN--If the object of an investigation is to get at the truth, as it ought to be, the whole transaction should be brought out. The amendent would serve as a mere trap to get out a portion of facts in a certain case.
The amendment was agreed to.
Mr. VAN VORHIS believed all the difficulty that has grown out of expect testimony has arisen fromn the construction placed upon the word "opinion," as in contra distinction from scientific facts. He moved to strike that word out of Section 457. It is the duty of every citizen to testify as to the facts connected with any trade, art, or profession, but when an expert is called upon to render service, such as rendering an opinion on an association of facts, he ought to be paid extra for it.
Mr. BELL doubted the power of a Court to call for an opinion without compensation, and moved to amend the amendment so the Court may make allowance.
Mr. LANGDON opposed the amendments and favored the text of the bill.
Mr. SHAFFER favored the amendment.
Mr. WOOLLEN also favored of the adoption of the amendment.
Mr. SPANN hoped the amendmendmet would not pvevail. No one should stand upon a higher plane in a Court of Justice than a farmer or any other man. No professional man should be allowed to rear back upon his dignity and refuse to give, without extra pay, an opinion, just because he has obtained knowledge of a certain kind by study or otherwise.
Mr. BRISCO thought the provision in the present law a very wise one. He would compel gentlemen experts, who stood upon their constional rights, to testify as well as any other class of citizens and for the same pay. There should be no distinction before the law as to the pay of witnesses, and all should be compelled to testify in the Courts of Justice upon the same footing.
Mr. VAN VORHIS insisted the only object of his amendment, was to eliminate the word "opinion" from this section, which word has been so construed as to cause much trouble in the Courts.
The amenedment to the amendmemt was rejected, as was also the amendment.
Mr. CHAPMAN moved to amend the fifth clause of Section 211 by providing that actions on written contracts hereafter executed to pay money shall be commenced in ten years. He said there are but two States where the limitation upon instruments of this kind is fifteen years; in a majority of States it is six years.
The amendment was agreed to.
Mr. COMSTOCK offered an amendment so Section 368 to rectify improper notification of any party to a suit, pending which--
The Senate adjourned till to-morrow.
