The American Judiciary Part 12

If the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot.

If the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[Footnote: See Chap. XII.]

In some States the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it pa.s.ses before the jury are addressed. In most States there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge.

In every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. If in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. But if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. He can, at common law and by the practice in most States, give his own opinion as to the weight of evidence on any point in controversy.

The common law requires unanimity on the part of the jury before they can return a verdict. If it cannot be had they report a disagreement, and the case stands over for another trial.

If they agree upon a verdict, it must, to be effective, be accepted by the court. This acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. If it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a _remitt.i.tur_ of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. In some States, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause.

When a verdict is accepted judgment is rendered in accordance with it. To this rule there are, however, certain exceptions.

It sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. He then can ask the court not to render any judgment upon it. This is technically called a motion in arrest of judgment. Again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. In such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict.

Verdicts are ordinarily given directly for the plaintiff or the defendant. Printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. Such a verdict is called a general verdict. Occasionally one of a different form is returned at the request of counsel and by the permission of the court. This is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. This is only proper when such a finding would have been simply a legal conclusion from these facts. A special verdict leaves it to the court to apply the law and render judgment as that requires.

In many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. This is a common practice in equity, the case being sent to a "master in chancery" for this purpose. In cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee."

The report of such a hearing sometimes is confined to the facts which are found to have been established. In other cases it may extend to a provisional decision of questions of law arising on those facts. The ultimate decision of any question of law is always for the court, and if it accepts the report it is its duty to draw the proper legal conclusions from the facts established.

As to whether the report shall be accepted, and as to the legal questions arising upon it, the parties have a right to be heard in court. Improper or irregular conduct on the part of the officer making the report may be shown as a cause for rejecting it. If it is accepted the facts found generally stand as conclusively established.

Equity causes are generally tried before a single judge, who decides all questions both of fact and law, proceeding in the same manner as in a common law cause in which a jury has been waived.

CHAPTER XV

PROBATE COURTS

The English common law regarded wills of lands as in the nature of conveyances, the due execution of which, if ever called in question in a lawsuit, was to be established then and there; but if never so called in question, need never be established at all by any judicial proceeding. Wills of personal property, on the other hand, were to be proved as soon as might be before an ecclesiastical court, and unless so established were ineffectual.

This difference in the treatment of the two kinds of wills was due to the legal principle that so far as personal rights and obligations were concerned the personality of the dead was, after a certain fashion, continued in existence by attributing personality to their estates. These were to be administered by some one as the "personal representative" of the former owner.

This personal representative discharged his personal obligations so, far as there might be personal estate or rights of property sufficient for the purpose. He was styled an executor if designated by will; an administrator if there were no testamentary appointment. A man's lands, however, went upon his death straight to his heirs unless he had by will conveyed them to some one else. That when he died they were part of his estate did not charge them with the fulfillment of his personal obligations. For the discharge of these the creditor must resort to his personal representative. His heirs occupied no such position.

The administrator was always appointed by an ecclesiastical court and rendered his accounts to it. Long use and the existence of a State church with a regular judicial establishment, made such a system tolerable to the English people; but the new conditions under which those of them came who planted the American colonies made it both intolerable and impossible here.

While most of the colonies had an established church, none had bishops or bishops' courts. The bishop of London claimed a certain jurisdiction over all, but in none was it recognized as extending over the estates of the dead. In the Crown colonies the instructions to the Governors generally referred to it as sanctioned by the government but not as extending to the probate of wills. Some of the Governors were given _ex-officio_ full probate powers.[Footnote: "The American Jurisdiction of the Bishop of London," Transactions of the American Antiquarian Society, Vol. XIII, 188, 194, 197.]

The same considerations which early led to the general adoption of a recording system for deeds of land in all the colonies extended to wills, since they also might convey it. Such records, to attain their purpose, had to be public in the fullest sense. Nothing was allowed to go upon them which had not some kind of authoritative sanction proceeding from the State. Deeds were first to be acknowledged before a magistrate. As to wills, the practice finally came to be to require them to be established once for all as the act of the testator by a court invested with special jurisdiction for that purpose, and also over all estates of those who die leaving no will. This, if organized for that special function particularly, is ordinarily styled a Court of Probate, occasionally a Surrogate's Court or Orphans' Court. It is sometimes given, and sometimes not given, a certain authority over the real property within the State while the estate is in settlement.

All real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. Even if it has gone into the possession of an heir or devisee, the proper Probate Court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary.

The formal establishment or "probate" of a will does not affirm the validity of its provisions. It simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. Commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury.

The succession of particular persons to the property of the dead is not a matter of natural right. It rests upon positive law and is regulated by the authority of the government at its pleasure.[Footnote: United States _v._ Perkins, 163 U. S. Reports, 625.] Probate procedure is therefore wholly determined by local legislation and practice.

In many States, probate jurisdiction belongs to the county courts. In others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. In a few these local courts are very numerous, all the towns of the State being distributed into small groups and each furnished with its Probate Court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. An appeal is given from his orders to a higher court of general jurisdiction. In practice such a system works fairly well. If there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. If a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it.

The proper seat of administration is in the State and the local subdivision of the State where the dead man belonged.

Proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the State. Real estate in another State can be affected by probate proceedings only if they take place there, by its authority. For that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the princ.i.p.al administration.

Since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the State from the laws of which he derives his authority. He may take possession of the goods of the estate found in another State, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his t.i.tle there before the appropriate Probate Court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment.

CHAPTER XVI

BANKRUPTCY AND INSOLVENCY COURTS

It is within the power of Congress to a.s.sume the exclusive regulation of bankruptcy proceedings throughout the United States.[Footnote: U. S. Const.i.tution, Art. I, Sec. 8.] There is in this country no real difference in meaning between the terms bankruptcy and insolvency. Each denotes a _status_ into which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. The remedy is not confined to any particular cla.s.ses of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent.

During most of the history of the United States there has been no uniform law on the subject of bankruptcy for the whole country.

Three bankrupt Acts were enacted by Congress from time to time during the first century after the adoption of the Const.i.tution.

Each followed some serious financial crisis, and was repealed not long after the immediate effects of the crisis had pa.s.sed away.

They were adopted as a kind of [Greek: seisachtheia] to help insolvent debtors to get on their feet again. A later Act pa.s.sed in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large, 544; 32 _id._, 797.] and as it contains many provisions which have been found useful by creditors as well as by debtors, it is not unlikely to remain permanently upon the statute-books.

The prosperity of the United States rests mainly on the absolute free trade which exists between the several States. That necessarily results in innumerable credits extended by citizens of one State to those of others, and in immense property interests in each State belonging to non-residents. In case of insolvency full justice can not be worked out except through the legislative powers vested in the United States.

The Act of 1898 allows any one except a corporation to become a voluntary bankrupt. Practically any insolvent debtor can be thrown into involuntary bankruptcy, except wage earners, farmers, incorporated banks, or business corporations owing less than $1,000. This is so even if a State court of insolvency has already taken charge of his affairs; and if that has occurred it is of itself a sufficient reason for bankruptcy proceedings.

Pet.i.tions in bankruptcy are preferred to a District Court of the United States. Each bankrupt estate is put in charge of one or more trustees. They can maintain actions to recover or protect it, as a general rule, in the courts of any State as well as in those of the United States.[Footnote: See Bardes _v._ Bank, 178 U. S. Reports, 524.]

Their t.i.tle does not extend to anything which by the laws of the State where the bankrupt belongs is exempt from his creditors.

Such exemptions differ greatly in different parts of the country.

In some States certain property of the value of $5,000 may be exempt; in others the amount which the debtor can retain is comparatively trifling. There is, therefore, no uniformity in the result; but there is, nevertheless, uniformity in the rule under which the results are reached, and this is enough to support the validity of this provision of the statute.[Footnote: Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.]

The bankrupt may propose a composition to his creditors, and it may be accepted by a majority of them in number if they also hold the major part of the indebtedness. If such an acceptance is confirmed by the court the entire indebtedness is discharged when the total amount to be paid (including whatever is necessary to discharge all preferred claims) is deposited in court.

A discharge may be granted to every honest bankrupt (whether his estate pays anything to his creditors or not), which clears him forever of all his ordinary debts. It does not apply to taxes nor to liabilities for certain wrongs of an aggravated character; nor can two successive discharges in bankruptcy be procured within six years unless the first was the result of involuntary proceedings.

Whenever there has been no national bankruptcy law in existence, the States have been held to be free to pa.s.s such insolvent laws as they might think proper. During the existence of a national bankruptcy law no State insolvent law can be of any force which covers the same field.[Footnote: Ogden _v._ Saunders, 12 Wheaton's Reports, 213; Tua _v._ Carriere, 117 U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports, 709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded or suspended as a necessary effect of the enactment of the Act of Congress, although that contains no express provision to that effect.

Most of the States have on their statute-books provisions for a permanent system of insolvency proceedings. In some they are as favorable to the debtor as the United States bankrupt law of 1898: in more they are less favorable. Generally such proceedings are brought before a court of special jurisdiction, const.i.tuted both for this purpose and for the settlement of the estates of deceased persons and of those who are incapable of managing their own affairs. In the older States it is often made a condition of a discharge that the creditors shall have received a certain percentage of their claims.

The relief which the States are competent to give either to debtor or to creditor is very inadequate. The discharge of the debtor is of no avail except as against those creditors who were subject to the jurisdiction of the court. None are so subject except those belonging in the State, or actually taking part in the proceedings.

Every bankruptcy or insolvency proceeding is a great lawsuit.

The discharge is the final judgment in it. It can bind none who are not parties to the action. Only those are parties who were bound to appear, or who did appear. No one belonging to any other State or country can be bound to appear, unless in the rare case of a personal service of proper process upon him, made while he was within the territorial jurisdiction. Any creditor, wherever he may reside, who files a claim against the insolvent estate, or receives a dividend from it, makes himself a voluntary party. But as against a non-resident who keeps aloof and takes no part in the proceedings the discharge is worthless, even in the courts of the very State by authority of which it was granted.

On the other hand, the creditor gets less aid from the State courts than a trustee in bankruptcy. The trustee in bankruptcy can sue in any court in the country in which the debtor could have sued for the same cause of action. The trustee or a.s.signee in insolvency, acting under the appointment of a State court, can only sue within that State, unless his t.i.tle has been fortified by a conveyance from the insolvent which would be good at common law. So far as his t.i.tle rests on a law, by which it was taken away from the bankrupt and vested in him, it is ineffectual wherever that law is ineffectual; and the law of no sovereign is effectual of its own force outside of his territorial jurisdiction.