Huntington v. Bishop

5 Vt. 186

• Court: Supreme Court of Vermont
• Decided: December 15, 1832
• Status: Published

Opinion

The opinion of the Court was pronounced by

Phelps, J.

It is insisted in this case that the Court below, in denying the trustee a trial by jury, has denied him the enjoyment of a right guaranteed to him by the Constitution. The sacred regard which should be entertained by all our judicial tribunals for the provisions of that charter, from which all the powers of government are derived; the great importance, attached to the trial by jury, and the scrupulous care with which it is guarded in all our Constitutions, renders this question one of serious import. Whenever this right is denied, it becomes us carefully and seriously, to examine those instruments and see whether any of its provisions have been disregarded.

The trustee in this case predicates his right upon the 9th Act of the amendment to the Constitution of the 'United States. That article provides, “ that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by jury shall be otherwise re-examined, in any Court of the United States, than according to the rules of the common law.”

It is very doubtful whether this article has any reference to the proceedings of the State Courts. These articles of amendment, were proposed by Congress, after the Constitution was adopted. The resolution of that body, proposing the amendments, assigns a reason for the proposal, “ the desire” of the conventions of several of the States, at the time of the adoption of the Constitution, “ in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should bs added.” It is apparent that the object of this article was, to prevent “misconstruction or abuse” of the powers conferred by the Constitution, and for that purpose this “ restrictive clause” was added. It was designed as a check upon the General Government. It does not, in its terms, apply to i the State Governments, and was introduced, as appears by the preamble just quoted, with reference solely to the 'Courts of the United States. The article itself affords evidence of the same truth. The restriction Upon the reexamination of any fact tried' by jury is limited, in terms, to the Courts of the United States. This restriction was most obviously necessary to render the article perfect, and fully to secure the right in question; and if the former clause was intended to have any bearing upon the jurisprudence of the States, no possible reason can be assigned why the latter clause was not thus limited. It may be added, that no control is given to the general government, by the constitution, over the jurisprudence of the States $ and such a restriction, as a measure of precaution against the “abuse of its powers,” was wholly unnecessary. Moreover, had it been intended as restrictive of the States, it, would neither have been introduced with such a preface, nor concluded in the same language. The provisions of the instrument, intended to be restrictive upon the States, are so in terms.

But conceding, for argument’s sake, that the article in question has reference to the Courts in this State; the question arises, what is the import and true construction of the article ?

In the first place, the provision is confined to suits “ at common law.” It would be difficult we apprehend for the trustee to make out, that this is a proceeding at common law. It is a proceeding under a statute, authorized and regulated by statute, wholly unknown to the common law, and existing no where except by statute.

In the next place, the enactment is that “ the right of tria Noy jury shall be preserved.” Here a known pre-exis-ting right is spoken of — a right established and regulated by immemorial usage — a right existing at common law, and “preserved” in all cases, where the proceedings are according to the course of the common law. There is no attempt to create or extend a right, but the obvious purpose is to preserve and secure this right, in all cases, where, by the course of proceeding, it is the appropriate mode of trial. It would certainly do violence to this article, so to construe it, as to prohibit all Chancery proceedings, all proceeding in Probate, or Prize Courts — and in short all the various proceedings, in the administration of justice, which take place without the intervention of a jury. The next effort is to predicate this right upon the Constitution of this State. That constitution is merely declaratory of this right, “ when any issue in fact, proper for the cognizance of a jury, shall be joined in a Court of law.” The proper construction of this article leads to the same result. It declares, that “ the parties have a right to trial by jury, &c., evidently referring to a preexisting right, well understood, and well defined; and as existing, in all cases, “ proper for the cognizance of a jury.” This last clause is a direct reference to the usages and practice of the common law. Unless this be understood, and the right intended is understood to be such as had been before enjoyed, the article is nugatory. Tf every successive legislature is to determine for itself what is proper for the cognizance of a jury, the article is of little value. The result is, that the right is secured by this article, only so far as it is sana-tioned by established usage, and where, from the nature of the issue, and the course of proceeding, the trial by jury is the appropriate mode. In conformity with this construction, has been the whole course of our legislation and jurisprudence since the adoption of our Constitution. We have had our Chancery proceeding, our Probate Courts, and even our action of account, and book debt, operating from day to day, without dreaming, that all this was a gross violation of the Constitution, which is now discovered to have secured to the parties a trial by jury in all controverted cases.

This leads me to enquire whether this is a case proper for the cognizance of a jury. If it be so, then indeed the right contended for is guaranteed by the Constitution.— And this enquiry involves the nature of the action, and its analogy to other proceedings, with respect to which the right of trial by jury has never been the subject of debate.

This suit as between Huntington, the plaintiff, and Spooner, the principal debtor, is purely a common law proceeding ; and the issue between them is doubtless proper for the cognizance of a jury. But the proceeding against the trustee is a mere incident to the principal suit. This Proceeding as already observed, is a creature of the Stat.ute, a part of the attachment law; and the object of it is ' merely to secure the estate of Spooner to. respond the judgement which may be recovered in the principal suit. The Statute styles him, a trustee, and at the same time makes him so, or perhaps more properly changes the cestui qui trust, and transfers the use from the principal debtor to his creditor. After the service of the process, the trustee becomes a sort of stake holder, a depository of the effects for the party ultimately entitled to them. He is considered as holding in trust, subject to the direction of the Court. In conformity with this view, he is treated like a trustee — ■ he is called upon to disclose under oath, as to the effects in his hands, and the trust is enforced precisely as it would be in Chancery. His rights are no farther involved than those of any trustee, nor indeed farther than are necssarily so in the execution of a trust. • .

From this view of the subject it is clear that this proceeding bears no analogy to any proceeding at common law, but is analogous in all respects to a proceeding in Chancery. Unless then the Constitution of this State secures to the party a trial by jury, in every case of disclosure or answer upon oath in Chancery, it can hardly be extended to the case in question. Nor is the issue (if issue it can be called) proper in itself for the intervention of a jury. There is an absurdity in submitting to a jury the determination of facts, supposed to be locked up in the br-east of the party, and where the principal if not the only evidence is his disclosure upon oath. If as in a neighboring State no evidence is received to contradict the disclosure, a more rediculous farce than a trial by jury can hardly be imagined. :

The only remaining enquiry on this part of the case, is, whether a trial by jury is given by the Statute. It is remarkable, that the Statute authorizing this proceeding has no allusion to any such trial, but its language throughout seems to contemplate a trial by the Court. Rev. Laws, 349.

Some of its provisions, particularly the 3d section, are inconsistent with the notion of a trial by jury. If such mode of trial was contemplated, it is strange that no provision should be made in relation to it.

We are by no means anxious to engraft, .by force of construction, this mode of trial upon the trustee process. To do so would be to render the proceeding tedious, and em-' barrassing, and moreover seriously expensive; and what is still worse, defeat the very purpose of the Statute, by consuming the effects in protracted litigation. We are therefore of opinion that the County Court did right, in refusing a trial by jury.

The next exception is taken to the decision of the Court, in admitting other evidence than the disclosure of the trustee, in order to charge him. If the analogy, supposed to exist between this proceeding, and a proceeding •in Chancery, do actually exist, so far as that analogy would serve to determine the points, it certainly tends to support jthe decision of the Court. In all cases, where it is attempted to .enforce a trust in’ Chancery, the rules of that iCourt admit other proof than the answer to establish it.— fjnless then, the Statute regulating the process confines the proof to the disclosure alone, it would seem that the ¡usual mode of proof, in analogous cases, should be adopted. The Statute howeyeyjras no such restriction. On ¡the other hand, it is only at the election of the plaintiff, that the trustee is examined upon oath; (see sec. 4,) evidently implying, that his disclosure is not the only legal .evidence; and the expressions “ or other evidence” as used in the 4fh & 5th sections of the act evidently contemplate proof from other sources.

The supposed hardship on the part of the trustee, in -subjecting his disclosure to contradiction by extraneous evidence, is rather imaginary than real. In ordinary cases of contested right, the party is denied the privilege of his own testimony. He is placed; by the course adopted in this case upon the same footing as if called to diselose by process in Chancery; and enjoys the advantage of having his disclosure taken as true until disproved. On the other hand, to treat his disclosure as conclusive, would introduce an anomaly in the law, and tend to jeopardize his own integrity as well as the rights of his adversary.

We are aware, that in an adjoining State a different rule has obtained, in their practice under a similar Statute. To the authority of their decisions, however high it may ^c, ^*s su®e*ent to oppose the uniform' practice, of our own Courts, since the existence of the Statute.

Another ground of exception is, that the Court below erred, in holding the trustee chargeable upon the facts stated.

The trustee insisted in that Court, that the notes given by him to Spooner were not legally due. 1st. Because they were obtained by misrepresentation ; and 2ndly, because the consideration had failed.

As to the first ground, -it is sufficient to observe that there was no evidence of any misrepresentation. So far us appeared, Spooner was the owner of the property which he represented himself to own. And as to the second it appeared that the property actually passed to the trustee. The only difficulty arose from Huntington’s refusing to be connected with him in business, aija this was a matter beyond Spooner’s control, and for whicNhe was not responsible. Another answer may be given truthis defence.— Bishop, finding difficulty in conducting the business, sold out to J. D., who paid him $75, for the visible property, and agreed to indemnify him from the notes in question, and it did not appear that J. D. experienced any difficulty in enjoying the privilege. It is right therefore that J. D. should pay for the property, and he must be compelled to it, in the only practicable modes, viz. through his indemnity to Bishop. As to the latter, the whole subject of a failure of consideration consists simply in a loss of $25, on the re-sale of the property.

Wc come now to the fourth and last ground of exception, viz : the denial of the right of review. This right is claimed by force of the judiciary act of 1797, and the supplementary act of 1824.

It is to be observed that the first act has, previous to the provision for a review, no reference nor allusion to any matter or proceeding, not within the ordinary common law powers of a Court of general jurisdiction. The right of review there given, is evidently referable to such suits or actions as might by the rules of the common law be sustained in such Courts, and where the proceeding is according to the course of the common law. The act has no reference to any anomalous proceeding, created and regu-hied by particular statutes. It is further to be remarked, that the “ trustee act,” as it is denominated, was not then passed; and it is not to be inferred, that the review was intended to be extended to a proceeding then unknown to our laws.

The act of 1S24, on. the same subject, has reference to actions of the same description, and is in effect merely a restriction of the right given by the earlier statute. This proceeding is governed exclusively by the trustee act; and it is not to be supposed that the-Legislature intended to subject a proceeding, created by special statute, and regulated by such statute throughout, to the operation of the law which has reference to the ordinary common law jurisdiction of the Courts.

With respect to the trustee act, it contains no provision for a review; but on the contrary, all its provisions seem to exclude it.

Further, this proceeding being in the nature of a Chancery proceeding, the right of review, as given by statute, is hai-dly applicable to it. If it were allowed, it would carry with it as a necessary consequence the right on the part of the trustee to vary his disclosure, tempting him. to vary it according to the exigencies of his case, and thus putting at hazard the administration of justice.

Finally, the proceeding against the trustee being merely preliminary to the trial of the principal suit, to admit the right of review, which must nceessarily be mutual, and expose the parties to the consequences of three trials with the trustee, and perhaps as many more with the principal debtor, involving a ruinous waste of time, and money, and defeating the very purpose of the act — -would be giving to the act a construction and an effect which we are satisfied the Legislature never intended*

The judgement of the County Court is affirmed.