Delaware State reporter., 1853-04-26

draw from that committee, leaving the counties
equally represented upon it.
Mr.. BURTON. would suggest that, instead
of allowing the honorable member from Mill
Greek to retire from that committee, we should
add one member from each of the other copn-
ties. That win give an equal representation to !
each of the counties on that committee. Imake
that motion.
The motion was agreed to and the PREsI-
DENT appointed Mr.. MERRIKEN, of Mispillion /
Hundred Kent county, and Mr.. JONES, of Nam /
ticoke Hundred Sussex county so that the
committee now consists of the following dele
gates: VI
NIcssis. Bayafsl, Smithcrs, I.ofiand, Iong.9
Gibbs, Bates, Burton, Lodge, Hazard, Springer
Nei1iken, and Jones.
JUDICIAL DEPARTMENT.
On motion of Mr.. SpRINGER, the Convention
proceeded to consider the modified report of the
Committee on the Judicial Department, as re-
ported from the Committee of the Whole.
Mr.. BAYARD. / understand that this p1ojct
for the amendment of the Constitution, in refer
cncc to the judiciary, has been reported back
from the Committee of the Whole to the Con-
vcntion. | would ask whether it is now an
order under the rules which govern this body,
to offer amendments to it
Mr.. BATES. Certainly.
Mr.. BAYARD. There arc one or two,amcnd-
mcnts which Iwould suggest, which seem not
to have been adycrtcd to i'll Committee of the
: Whole. | do not wish to trouble the Convc,l-.
ton on the subject, generally, for do not know.
n how far may feel an interest in the future diA
4 position of this matter,u the questions con-
$ nectcd with the Legislative Committee are ad
iustcd | do not therefore, wish to interfere
with the opinions of others, when it may be that
my own course will be such as to prevent inc
|. finally remaining in the Convention. | wish to
i make one suggestion, however, which has not
been acted upon, but which, it strikes me, is Of
. some Importance.
The tenth resolution attached to the report
under consideration, relates to the Orphans
: Court and it provides that when the Chancellor
= = and the associate Judge sit in cause, and con-
y y cur in opinion that there shall be no appeal from
! their decision, except in matters relating toreal
estate. The same provision exists in our pres
q cnt Constitution. | have often thought of it as
= denial of justice, and / have never been able
# to understand on what plausible or possible
;, ground the right Of appeal should not exist in
. relation to all decisions of the Orphans Court,
o as well as in matters concerning real estate All
20 civilized nations recognize a right of appeal
from the decisions OF courts entertaining cause
NJ in the first instance. Though, nominally, the
- accounts of executors. administrators and guar
Il dans are filed, in the first instance before tho
10 register, there is literally no hearing there The
u argument, the hearing, is always in the Or
phans' Court in the first, and in the last instance
- can see no good reason why the right of ap.
n - peal from the decisions of the Orphans Court
bc should not be general or why it should be con
u fined TO matters relating to- sreal estate. The
n rights OF personal property are just as sacred tt
or a man, as the rights connected with real estate
Il, and further, the magnitude of the sum involved
hyo may be just as great in relation to personally
81 as to reality. If any member of this body hat
the sum of $4,000 in personal property at issue
dependent upon the decision of the court h
NJ would naturally think that he ought to be emti
NJ tied TO an appeal on question of law connected
OH with the disposition of that sum, as much as
- he had $500 worth of land i'll controversy, ol
- the subject of appraisemcnt.
~ ~ But, further, the laws of this State, and of al
7 States living under the general system Of tn
= common law are far better settled i'll rCierenc
@ oS to land than in relation to trusts, personalt
,1o generally. The reasons for ismight be rcadi
20 given but need not detain the Convention Ii
of doing so. There can be no doubt of the fac
80. that there are much fewer cases of dispute
opinions, of difficult and doubtful questions
RI arising in reference to real estate than there
10. in relation to the rights of personal property
os and to personal obligations, and especially
Z reference to trusts. There is no ono subject,
"a regard to which, i'll the practice of law, thcl
,nn are more open questions, more rcaatd GueStiohe
~. as they are called by lawyers, than i'll rclatio
nd to trusts. As regards the Court of Chanccr,
ink you alloM an "PPc"l iloih "l uInioioi.s VI u
rce Chancellor, intcrlocutory, well as final. /
~ acts upon trusts created by the acts of the part
,o,, The matters which come before the Orphan
nt Court are essentially trusts they are the SC
in tlement of the accounts of guardians, executor
Iii and administrators, who are all in fact trustee
i a The very same class Of questions W hich invol
i the duties and the liabilities of trustee, con
bor before the Orphans Court for decision, viii,
ion come before the Chancellor in reference
,rc. trusts created by the acts of the parties. Y
,re. allow an appeal in the one case you deny il
;on the other. Yet there is no one branch Of Il
ntv law in which more intricate questions have
I75 be decided than in reference to trusts. | su
five nit, therefore, that there is real reason wi
her the right Of appeal, which is guaranteed
~ every other case, should not exist generally rc
the Orphans Court to the Court of Appca
,blc without reference to whether the dispute is abe
stlc land or not.
,fed My motion is to strike out the words, VIII
"a they concur in opinion, there shall be no app
mid from their decision, except i'll the matter of II
tain estate. When their kpnions are opposed,
mo when decision is made by one of them, a
/. At in all matters involving right to real estate,
nty the appraised value or other value thereof
,ino and to insert, after the word 'appeal," I
real Woros, nom INC Vlrhans Houft' :,
stify amehuea; mn she resolution VIII % rcnd: III,
n in the Chancellor and the Judge residing i'll
county, the Chancellor being President. Fit
rosc of them, in the absence of the other, may Ii
EIL, the Court There shall be All appeal from
i'm Orphans Court to the Court Of Errors a
Appeals" &c. This would leave the right
ould appear 70 cAlsC IN ts case as IL does IN relat
able 10 inc superior eourt. nc clause as II stan
the present Constitution. If any reason
be given for it, should like to hear it, 1t
until always seemed to me like denial of Justice
The present system produces incongru
You have general appellate court, and yet,
particular matters, you make the Orpha
Court court of last as woll as first resort.