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(d.) The Legislature of the State of New York, at its annual session in 1886, passed a statute entitled “An act to provide for the amicable adjustment of grievances and disputes that may arise between employers and employes, and to authorize the creation of a State Board of Arbitration." (Chap. 400, Laws of New York, 100th Sess., 86).
This is a new statute. It does not provide for compulsory submission to arbitration, but does provide for a voluntary submission of any such dispute or grievance to a board of five arbitrators, two of whom are to be selected by each side, and the fifth member of which board is to be selected by the four so chosen. The act also provides for an order from the county judge, affirming the proceedings by which the Board are so constituted. It also provides for an appeal to the State Board of Arbitration. The latter board consists of three members, and provision is made in the act for selecting them from different political parties. It does not seem to be necessary, in the opinion of this committee, to have the latter provision in an act in our own State. A provision requiring the selection of members of such a State Board, with reference to character, integrity and ability, irrespective of party affiliations, would certainly meet the necessities of the situation. The New York statute is commended in the recent annual mes. sage of Governor Hill, of that State.
Commendation of the practical working in different European countries, of provisions for the settlement of disputes between employers and employed, have also inclined the members of this committee to favor very strongly the enactment of a statute on that subject in this State.
II. The instruction of the Association at its last meeting, upon the motion of Judge Bradwell, that this committee should prepare and report some plan to avoid the laws' delays, and to promote a more speedy administration of justice in this State, has led this committee to make some general recommendations as follows:
(a.) An addition to Section 17 of the Practice Act, as to the order of trials, might be of service. The changes recently made in that section have been in the right direction. But to give an opportunity for conciliation, promote a clear understanding of actual differences between parties, and effect a proper classification of cases, and a due assignment of the same for trial, so far as this may be found expedient by the courts respectively; the committee would recommend that in each action the time for filing an affidavit of merits or a plea, be by statute declared to be a time when the cases respectively shall be subject to be called in order, as nearly as may well be, and that in all new cases the parties thereto, by themselves or counsel, shall at the time, or when required by the Court, state, so far as the Court shall deem it necessary to have a statement, the alleged cause of action, and defence or counter-claim, and that in case such statement be verbal, a short memorandum thereof shall be entered, and it shall be thereupon determined by the Court whether any, and if so, what, special pleadings are required, and whether the cause shall be assigned to a docket of contested cases, to be kept by special notation on the principal docket or otherwise, allowing the Court to have other separate dockets also as at present provided; and requiring the Court to determine whether the particular case is to be tried by the Court without a jury, and further amending the statute as to referees, to give the Court power to refer where it shall appear that a case is one which depends upon the statement of account, or mutual accounts.
A direction to strike cases from the docket, with leave to reinstate on payment of the usual fee as on commencing a suit, might be made applicable to any civil case not ready for trial on the second call of the saine for trial after the same shall have been at issue, saving in case of the death of a party, or where good cause for continuance shall be shown; and the statute might provide that such cases shall not be reinstated unless application for reinstatement be made on or before the third day of the next term, but shall be treated as having been dismissed, as in case of non-suit.
(b.) That in all chancery cases three months' time, subject, however, to be restricted or enlarged by the Court, be allowed for the taking of evidence, and that such evidence be by deposition, save when otherwise specially ordered or permitted by the Court. Also that in all suits in chancery, to be heard upon depositions, a copy of the pleadings, and an abstract of the evidence, be put in print, and placed before the Court at the final hearing.
c.) That once or oftener at each term of Court a general or special call of each docket be made with reference to classifying the cases, and determining which are to be tried, and whether trial is to be by the Court, with or without a jury, and which, if any, of the cases may be disposed of without trial, or by reference to a referee. Accountants' fees, when allowed by the Court, should be taxed as a part of the costs.
(d.) The statute in regard to the administration of estates, might receive some consideration under the resolution last mentioned. The time for closing estates might perhaps be shortened with advantage. In many cases the estate might be closed probably within a year. It would seem to be advantageous to change the statute as to publishing for the adjudication of claims. It would be better to allow the clerk to publish a notice that claims must be presented within a year from the date of letters of administration, and not to require the administrator to cause such notice to be published, nor have the same posted. The forms given in the statute, of papers required to be recorded, could be considerably abbreviated with advantage. These suggestions are somewhat fragmentary; and perhaps it would not be for the best to amend the statute by mere patch-work, but would be better to revise it with some thoroughness to adapt it to existing and prospective exigencies.
III. While approving the objects of the resolution which was offered by Mr. Rayburn, at the last meeting of this Association, suggesting a proposed amendment to Section 120 of Chap. 37, title “Courts," Revised Statutes of Illinois, the committee would suggest that it should be further provided that no such indictment be certified to the County Court, when unnecessary delay or failure of justice shall be likely to occur by the indictment being so certified to the County Court.
The resolution which was offered by Mr. Williams, in reference to providing by statute that the surviving husband or wife shall take the entire estate of an intestate, leaving no surviving descendant, parent, brother or sister, has not met the concurrence of the committee as the best rule for many cases. The proposed change is not therefore advised.
V. The topics that most naturally suggest themselves to the lawyer in active general practice as fit subjects for legislation, are questions of procedure and practice. And to some that come under this category, it may not be improper to now direct your attention.
(a.) The right of appeal from judgments of the Appellate Courts should be extended very materially. As the case stands now, in a law case no appeal is allowed from an ordinary judgment of reversal and remand. A party is compelled to go back and retry his case perhaps upon an entirely erroneous theory. After he is beaten he may appeal to the Appellate Court, which will, of course, affirm its former ruling, and he then goes to the Supreme Court. If that Court decides in his favor, the result is a venire de noro. Where after a trial in the court below a party has judgment, that judgment, if the amount involved is $1,000, ought not to be finally overturned except by the concurrence of the Supreme Court.
The law, therefore, should be amended so as to provide that an appeal may be taken by the defeated party from judgment of reversal by the Appellate Court in all cases where had the judgment been one of affirmance, an appeal might have been prosecuted
(b.) In actions begun by attachment, as the practice generally obtains, the attachment issue is first disposed of, and then the case is tried upon the merits. It is thought that both issues should be tried together. This is the practice where suit is commenced by summons, and an attachment is sued out in aid, and no good re son is perceived why it should not be the practice in all cases.
(c.) This State has always retained the old common law rule that only he having legal title to the thing in action could sue for its recovery.
It is thought that this rule should be so modified as to permit suit to be brought in the name of the real party in interest.
The law should provide that an assignment of a chose in action, except negotiable paper, be without prejudice to any set-off or defence existing at the time of the assignment or notice thereof to the debtor. Causes of action arising in tort should not be made assignable.
The effect of this change would be greatly to simplify procedure in actions law, and to bring it into line with the practice in England and in this country generally.
Again, where a large number of persons having a claim against a common debtor so desired, it would be possible to unite them all in one suit brought by one of their number as assignee, and thus multiplicity of actions and consequent expense and annoyance might be avoided. This would be a matter of no little advantage to workingmen and others having small demands against a common debtor. The expense of progecuting these claims singly is now so great as in many cases to operate as a practical denial of justice.
(d) It is also our opinion that the power of a voluntary assignee to call in question the disposition of property made by his assignor in fraud of creditors, should be enlarged.
It seems now to be the law of this State that a conveyance, fraudulent as to creditors, cannot be attacked by a voluntary assignee, he being held to stand as does his assignor towards such conveyance.
Strong v. Goldman, 8 Bissell, 552;
Colburn. et al. v. Shay, et al., 17 Brad., 289. The law shouid be so amended as to confer on a voluntary assignee the same power in this regard which a receiver appointed in a creditors' bill possesses.
Strong v. Goldman, ubi supra. (e.) It is thought also that where an attachment is levied upon the property of an insolvent debtor, the plaintiff in the attachment should be permitted to file a bill in aid thereof, and to restrain the fraudulent disposition of assets, although his claim is not reduced to judgment. This bill should be filed for the benefit of all creditors who see fit to come in and claim under it. A case in this State wherein it was held that no such bill would lie.furnishes in its facts appropriate illustration of the necessity for the change suggested.
Shufeldt v. Boehm, 96 111., 560. This procedure is permitted in many jurisdictions, Often in this State a dishonest debtor is enabled for want of some such efficient remedy to encumber his property with fraudulent liens and entirely defeat the just claims of honest creditors.
In this connection, too, it might be well to permit an attachment to be sued out upon a claim not due, upon allegation of a fraudulent disposition of property either consumated or contemplated. Such is the law in some other states.
If.! With a view of facilitating the ascertainment of the truth as to the matters in controversy, many of the States permit either party after suit brought, to examine his adversary as to the matters in difference between them. It is a kind of substitute, efficient and inexpensive, for a bill for discovery. A change of the law permitting this is recommended. Such examination should take place only upon order of the court where the action is pending or of a judge thereof in vacation, upon cause shown.--the cost of such examination to be paid by the party at whose instance it is granted, and the examined party not to be considered as a witness for the party examining.
It is believed that such a practice tends to an adjustment of litigation often, and enable the parties to more fully and truly present the facts upon a trial.
(g.) It is thought that the statute permitting books of account to be read in evidence is not broad enough. It permits such books to be received where kept by any disinterested person, only where the person so keeping them is dead or a non-resident of the State. The books of all large mercantile establishments are kept by book-keepers. Therefore, if these “disinterested persons” are within the jurisdiction where litigation is pending, the books are not competent under the statute. They are not competent at common law because kept by those who as a rule have no personal knowledge of the sale and delivery of the goods.
Stettauer v. White, 98 Ill., 72.
The result is that, as in this case, books of account are in most cases inadmissible in favor of the firms by whom they are kept, although honestly and intelligently kept in accordance with the usage of merchants and men of business generally. This would be remedied by changing the present statute, so as to omit all reference to the decease or non-residence of the person making the entries.
(h.) There is a great and unnecessary confusion upon the question of pleading and proving foreign laws. The courts of this State should take judicial notice of the laws of the other states of the Union. Their statute books and reports are reasonably accessible, and if we had this rule, the ridiculous spectacle would not be presented of a lawyer being called as a witness to testify what the law of Wisconsin or lowa, for example, is as a matter of fact.
Moreover, the states are not as foreign nations to each other. They are sister states in a common union, indissolubly bound together by bonds which can never be riven asunder, and 'this sort of inter-State comity should be cultivated. It would be well worthy the splendid Empire State of the West to take a step in advance in this direction,
(i.) As a question of practice, there is very little to be said in favor of the old rule that in an action on contract against several defendants, a recovery must be against all or none.
A party not guilty of bad faith in joining two or more defendants ex contractu against such of the defendants as the evidence shows to be liable. Those not liable should have a verdict. As it stands now, a plaintiff may, before final judgment, amend by discontinuing as tò a joint defendant, but is sometimes liable to fail to get a verdict because of a misjoinder.
(j.) There is, it is thought, practical unanimity among members of the bench and the bar as to the consolidation of the several grand divisions of the State for the transaction of the business of our Supreme Court. It is thought that if this tribunal could hold its sessions at Springfield, and have more time and more favorable opportunities for consultation among its members in the decision of causes, and in preparation of opinions, there would be a great gain in facility for discharging its high and important duties, and that its hold upon the confidence and respect of the people of the State would be measureably increased.
It is now an ambulatory court without even the excuse which the old court of kings bench, sitting in aula regis, had for its perennial migration.
The proper location for this great court, holding the highest judicial power in this great State, is at the seat of government, where the co-ordinate branches of our political system, the executive and legislative, are rightly placed.
In this connection the committee also recommends that the annual salary of the justices of the Supreme Court be increased to seven thousand dollars. This would hardly be adequate compensation for the great responsibilities and arduous labors of this high office. Corporations and moneyed interests generally do not hesitate to pay liberally for the best professional service obtainable. It behooves the people to see that those upon whom they rely for the protection and vindication of their rights receive adequate compensation.
(k.) The institution of trial by jury, a theme of endless controversy in and out of the profession, is again suggested for consideration, by the assaults which are made upon it from all quarters. It is only quite recently that the president of a railroad, testifying before a legislative committee in an eastern States, gravely recommended its entire abolishment in railroad cases. It is said that a member of the bench in Chicago, recently upon a public occasion, stated that it was a question whether the proper way to reform this institution would not be to eliminate it wholly from our system of jurisprudence. This sentiment from a judge worthy a place in any court, certainly demands some attention.
An extract from one of our great metropolitan papers serves to illustrate the feelings which are entertained by a large, influential and intelligent class in the community:
"That the people of this country are generally dissatisfied with the jury system is certain. It is the subject for ridicule, not only by humorists, but by grave judges. The verdict of a jury is ordinarily a surprise to all who listen to the proceedings of a civil or criminal trial, and on that account many persons who delight in the improbable and unexpected frequent court rooms, Still while sporting men will bet on the turn of a card, the throw of a dice, the flight of a pigeon, the arrival of a steam ship, the issue of a base-ball match, or the speed of a race-horse they have never seen run, and whose record they are ignorant of, they never wager money on the chances of a jury returning a certain verdict. The rules that apply to chance or the ratio of probabilities do not, in the opinion of sporting men, apply to the action of jurors.
Why an institution that has outlived its susefulness, that is a relic of barbarism, and the only one existing in highly civilized countries, is preserved, is to many people a mystery. It may be accounted for on the supposition that it is a sort of fetich which intelligent people despise and have a contempt for, and of course declare they have no belief in, but are, after all, afraid of dispensing with. An American historian states that the people of Greece and Rome preserved all their old temples intact, and appeared to venerate all the statues to deities they contained, long after they had lost all faith in mythology. They did not believe in the gods of their fathers, but they were in mortal fear of displeasing them. A missionary in Africa declares the converts to christianity preserve all their old idols with great care. They renounce their faith in them, and remove them from the rooms that are likely to be visited by missionaries, but they preserve them in some secret place, and ordinarily visit them every day.
There may be another reason why the old jury system continues unchanged, although distinguished jurists no longer favor it. It serves to encourage litigation, to protract trials, to cause many cases to be tried several times, and to give cause for frequent appeals to higher courts. Lawyers, sheriffs and bailiffs are benefitted by all these delays and appeals, and they have much influence in shaping legislation.
Accordingly, legislation is proposed which shall make the privilege of jury trial burdensome, by providing that all cases shall be tried by the Court unless a jury is demanded by either party, in which case the party calling for a jury shall pay all or part of the expenses thereof. This committee cannot concur in these views. This great institution should be preserved in all its integrity, and should be jealously guarded by the friends of liberty and republican institutions alike against the open assault of avowed enemies, and the covert attack of those who indirectly seek its destruction under the guise of friendly solicitude for its conformity to enlightened public opinion.
No truer nor more fitting eulogy can be pronounced upon it than that found in the language of Mr. Justice Paine, of the Supreme Court of Wisconsin, employed in an argument in that Court against the constitutionality of the fugitive slave law, made while he was at the bar: “As the ark of the covenant containing the testimonies of God was borne by the twelve chosen by the twelve tribes of Israel from the wilderness onward to the land of promise, and as the waters divided before it and all the people to pass through dry-shod, so has the trial by jury, the ark of the covenant containing the testimonies of liberty, been borne by the twelve onward from remote ages of barbarism to the present advanced state of civilization, and so during all that toilsome march the waves of tyranny have divided before it and allowed the people to pass through unscathed.”
This splendid institution has been heretofore hampered in this State by legislation in two respects. The maxim ad questiones facti non respondent judices; ad questiones legis non respondent juratores, has been ignored, and juries in criminal cases are said to be by law judges of the law and facts. It seems too plain for argument that this is unnecessary. When, in England, judges were creatures of the crown, and held the law to suit the Sovereign, there was reason for that rule; here, where they are servants of the people, by them chosen with special reference to their learning and knowledge in the law, no possible excuse can be found for it, and it should be changed at onceCessante ratione legis cessat, et ipsa lex.
The common law right of a judge to announce the law and comment fairly upon the evidence has been taken away. He can only charge the jury in writing, and that upon the law. The statutory provisions quiring instructions to be in writing, and restricting the charge to the law of the case, should be repealed, thus leaving the matter as at common law. No friend of trial by jury can listen to the manner in which an able and upright judge in those jurisdictions in which it is permitted, sums up a case orally to a