Keener v. Finger

On the facts found by his Honor, we do not concur in the legal inference, “ That the defendants have not used proper and due diligence in endeavoring to receive and collect the “Baxter debt,” and are chargeable with the amount of said debt and interest.” The case was made up and argued before ns on the assumption that this Court had jurisdiction, — upon exceptions filed to an account, to go into all of the evidence and review his Honor’s finding in regard to the facts, as well as in regard to legal inferences. "We are of opinion that the Constitution does not confer such jurisdiction upon this Court; on the contrary, we are of opinion that *43it is expressly prohibited. In Heilig v. Stokes, 63 N. C. Rep. 612, a distinction is taken between “ questions of fact ” on a a motion for an injunction and “issues of fact,” which are conclusive of the case. In Kl-utz v. McKenzie, 65 N. C. 102, it is decided, that upon exceptions 'to the report of a referee, stating an account, this Court cannot review the finding in the .Court below upon the “issues' of fact” made by the exceptions. In Clegg v. N. Y. Soapstone Company, 67 N. C. Rep. 302, it is decided, that upon a motion to vacate a judgment this Court cannot review the finding of his Honor in the Court below upon the facts. So in Powell v. Weith, 68 N. C. Rep. 342, Hudgins v. White, 65 N. C. 393. We consider this matter settled by the plain words of the Constitution : “ The Supreme Court shall have jurisdiction to review upon appeal any decision of the Courts below upon any matter of law or legal inference, but no issue of fact shall be bried before this Court. Art. IV. Sec. 11.” In Foushee v. Thompson, 67 N. C. Rep. 453, Justice RodMAN makes the suggestion, that to allow the finding of the Judge below as to issues of fact, to be conclusive, and not to be the subject of review, confers upon one man a vast and dangerous power. That may be so, and perhaps the danger is guarded against by another clause in the Constitution which, by plain implication, gives to either party the right to have all issues of fact tried by a jury: “ In all issues of fact joined in any Court the parties may waive the right to have the same determined by a jury, in which case the finding of the Judge upon the facts shall have the force and effect of a verdict of a jury.” Art., IV. Sea. 18. If “issues of fact” made by exceptions to the report of a referee, in stating an account, and the finding of the Judge thereon cannot be reviewed in this Court, which we consider settled, it would seem that such issues, when eliminated by an exception to the report, may be tried by a jury, unless the parties waive the right to have the issue tried by a jury. The remarks made by me in Klutz v. McKenzie, as to the objections to a jury trial, in the old “ action of account,” and my intima*44tion that the parties were not éntitled to a trial by jury, were made on consideration of (J. G. P-, and without advertence to the power of the Constitution, Art. IT. See. 18, and it stands as an open question. But, however this may be, the words of the Constitution are too plain to admit oí discussion or to be refined away by construction. It is ours to interpret the law, not to make it. The manifest purpose of the Constitution is to take from the Supreme Court, as constituted under the new system, the jurisdiction which it had under the old order of things, to try all equity cases, both law and fact, upon appeal or by transfer from the Superior Courts. Whether the issues of fact are tried by the Judge in the Court below, or by the jury^ this Court is expressly prohibited from trying issues of fact, whether made by the pleadings as at law under the old system of pleading, or eliminated from the complaint and answer, by the Court directly, or by means of exceptions to an account, as at equity, under the old system of equity procedure. Taking this to be settled, we confine ourselves to the facts found by his Honor and to his legal inference therefrom, and do not feel at liberty to look into the evidence, which, without answering any useful purpose, encumbers the papers in this case, and will add a large amount of unnecessary costs.

His Honor finds the facts to be: 1st. “That the defendants did not attempt to collect the Baxter note until the Fall of 1862, more than eighteen months after it fell due.” Taking this to be so, it does not warrant the legal inference of a want of due diligence on the part of the defendants, without a finding of the further fact, that the obligors were men in failing circumstances, so as to call for active diligence in the collection, or that the condition of the estate required an immediate collection of this note in order to pay off pressing demands and to save costs.” 2d. “ That the defendants, by their own orders and acts, caused a levy of execution, not to be made until 1866, about three years after judgment, and then the execution was directed to one of the defendants in the execution, and by him as set forth in the record hereto annexed, and then not kept *45up and perfected as a lien on the lands of defendants in the execution, so as to secure the debt.” Taking all this to be so, it does not warrant the legal inference of a want of dne diligence, without a finding of the further fact, that it was for the interest of the trust fund that it should in 1868 and 1864, have been collected in Confederate money, or else the defendants should have taken upon themselves the odium of attempting to collect the debt in specie; and the further fact, that the defendants, in the exercise of due diligence, should have foreseen the fact, that at the close of the war, there was to be a military order forbidding the collection of all debts contracted for the purchase of slaves; and of the further fact, under the construction given to the homestead law, it would be held to apply to pre-existing debts, as in Hill v. Kesler, 63 N. C. Rep. 437, and that such significance would be given to the fact of a levy on land, as in McKethan v. Terry, 64 N. C. Rep. 25. 3d. “That the defendants, when they made the settlement, 27th September, 1863, accounted for the Baxter debt, and undertook to pay off all of the distributees in Confederate money in full and retain the said note themselves, and actually did pay off, tender, or file away Confederate money, for said distribu-tees to the full amount of the estate, the Baxter note included.”

Whereupon the Court declares that the defendants have not used proper and due diligence in endeavoring to secure and collect the Baxter debt, and are chargeable with the amount of the said debt and interest.”

This third fact, as it seems to us, instead of tending to show a want of due diligence, tends to show the contrary, for if the defendants designed to make the Baxter note their own, by settling up the estate in Confederate money and holding back this note for themselves, that relieves them from the implication of a want of diligence in its collection, as it is to be supposed they would use due diligence in collecting a note which they believed had become their own ; although it may subject them to the imputation of an attempt fraudulently to convert to their own use a note belonging to the estate.

*46So his Honor missed the point, and instead of the legal infe. rence of a want of due diligence, he should have considered whether the facts warranted the legal inference of fraud, and then he would have been led to the consideration of the question. can a cestui que trust, who seeks to follow the fund, hold the trustee liable when he has made no profit, and the fund has been lost notwithstanding due diligence on his part to pursue it? If so, a Court of Equity will impose apenalty, for which we find no precedent in the books.

For this finding of his Honor does not warrant the legal inference of a want of due diligmce, and the defendants have made no profits.

The decision is reversed, and the case remanded, to the end that the facts may be more fully found, because his Honor seems under a misapprehension of the power of this Court to look into the testimony and supply matters of fact, material to his legal inference; — to have merely found the prominent facts, as he considered them. In the Court below, if the parties be so advised, the right of a trial by jury as to the issue of due diligence may be demanded, so as to present that question to this Court directly tor adjudication.

This will be certified.

Pee Curiam. Judgment reversed.

(dissenting.) I dissent from so much of the opinion of the Court in this ease as decides that this Court has no right to review the opinion of the Judge below upon a question of fact made by the exceptions to the report. As I consider the question important I hope I shall be excused for an unusual prolixity.

The Constitution, art. IY, sec. 10, is as follows :

“Section 10. The Supreme Court shall have jurisdiction to review upon appeal any decision of the Court below, upen any matter of law or legal inference; hut no issue of faei shall be tried before this Court, and the Court shall have power to issue *47any remedial writs necessary to give it a general supervision and control of the inferior Courts.”

The particular question presented in 'the present case is this: A reference is made to a commissioner to report an account and he accordingly makes a report in which he finds a certain fact. One of the parties excepts to the report, for that the finding in respect to that fact is not supported by, or is contrary to the evidence, and that the commissioner ought, upon the evidence, to have found the other way. I agree with the rest of the Court that the Judge may make op an issue between the parties as to the disputed fact and submit the issue to a jury. And I also agree that he is not bound to do so, but may decide it himself. Can his decision be reviewed on appeal to this Court, or is it final ? In one sense of the word, it is an issue of fact, for one party affirms a fact and the other denies it. But is it such an issue of fact as the Constitution prohibits from being reviewed on appeal in this Court ? I think it is not. I think that in the Constitution, the phrase was intended to include only such issues of fact as are made by the pleadings.

The reasons which I shall offer in support of my opinion may be classed under three heads:

1. Authorities prior to the Constitution, showing the established meaning of the phrase then, and reasons for believing that it was used in that well understood and familiar sense.

2. Authorities since the Constitution defining its meaning.

3. The great public inconvenience to result from giving to it any other meaning; raising a presumption that this, and no other, was intended in the Constitution.

1. It is a settled rule that in the construction of all legal enactments, that when technical terms are used, they must be understood in the sense in which they are commonly used and understood by and among persons conversant with the art or science to which they belong. This rule has been repeatedly admitted as applicable in the construction of the Constitution of the United States.

*48I maintain that the phrase “issue of fact,” as commonly used in Acts of Assembly, treaties on pleadings, and other law books, and among lawyers, has a well understood meaning which coniines it, when accurately and technically used, to issues made by the pleadings

It is trite learning, that in actions at common law, the rules of pleading were so framed as to compel the parties by their respective allegations and denials finally to come to some single, certain and material fact, alleged on one side and denied on the other. Then the parties were said to be at issue, and the question so raised was called an issue of fact. It was called “ an issue ” because it was the “ exitus ” or end of the pleadings. At common law but a single plea was allowed and there could be but a single issue. Afterwards, by statute of Anne several pleas were permitted and consequently the issues might be proportionately more numerous. But this change is not material tor the present purpose. There may be issues of law also, made in like manner, but as such issues have no bearing in the present discussion I omit to notice them.

I think it will not be seriously denied, that, as applied to actions at law, such is the primary meaning of the phrase; and its only meaning, when accurately and technically used ; and also its most usual meaning. No questions of fact otherwise made than by the pleadings, and which arose incidentally in the course of an action, were called issues. The following authorities, which space will not permit me to quote at length, fully support this view : 3 Bl. Com., chap. 20 ; Steph. PL, 24, 54, 124, 444 ; Tomlins Law Diet., title, Issue; Rev. Code, ch. 31, sec. 57, rule 13. One passage only I will quote from Blackstone: “Issue, exitus, being the end of the pleadings,” &c. 3 Com. ch. 21, p. 314. No uncertainty as to the meaning of the phrase occurs until we apply it to questions which arise in suits in equity, upon the pleadings, or otherwise. But any meaning which it may have in proceedings in equity, is not a primary, but a secondary one, and the phrase is applied by analogy only. In early times it was never so applied; the *49term was unknown in such proceedings. In suits in equity the rules of pleading at common law did not apply. The plaintiff stated the facts of his case at large, as did the defendant his defence. Of course, in such statements there was much that was vague and immaterial, and the duty necessarily fell on the Judge, of either formally or informally striking out the immaterial allegations and ascertaining what material fact was alleged on one side and denied on the other.. The question so ascertained was called by the civilians, who alone 'sat, or pleaded in those courts, litis oontestatio. Steph. PL, ante.. After a while, the two systems of common law and chancery began to influence each other ; the pleaders in the courts of' one attended the courts of the other : and the Chancellor oc- \ 7 casionally sent such questions as he had educed to be tried by juries in the courts of common law; then the word “issue” was imported from the common law courts into the Courts of Chancery, where it had been hitherto unknown, and applied by analogy to what had been called the “ litis contestationes.” Being applied upon an analogy only, the application was naturally less precise and more general, and it sometimes extendedi to every question of fact which a Chancellor might think, proper to submit to a jury, no matter in what way or at what, stage of the suit it arose. But, still, even in Courts of' Chancery, its usual meaning was, and is, an issue made out of the pleadings.

The Constitution, itself, furnishes conclusive evidence that.the phrase was used in its primary, common law sense. The clause which abolishes the difference in the forms of actions at law and in equity, (art. 4, sec. 1,) was copied from the law off New York, and the code of practice and procedure, which:, commissioners were appointed to frame, was evidently con--templated, should be substantially similar to the one long in-, use in that State. This code of New York, (which in this respect has been almost literally copied in our own,) enacts rules of pleading which essentially, and in all the respects in which the common law system is distinguished from the chancery *50system of ascertaining the issue, are those of the common law. This may be seeu by comparing the rules of the code with those given by Stephen. By these the parties are, or may be, compelled to come to one or more issues decisive of the case. And although, no doubt, in practice it often happens that this desirable result is not attained, it is from negligence in the pleaders, and indulgence in the courts, and not from anything in the rules designed to produce such an abortive result. The phrase was used in anticipation of the conversion of all actions and suits substantially into actions at law, and must have the meaning which it had as applied in such actions.

A consideration of the evil designed to be remedied by this provision in the Constitution, will also help us to the meaning of the words by which it was attempted to be done. The evil was this: This Court had been in the habit of trying issues of ¡fact in equity suits, both upon appeal and originally. This was certainly contrary to the spirit of the Bill of Rights, and to the sentiment that no court should pass both originally and finally upon such issues, but that they should in all cases be submitted to a jury as the most appropriate triers of fact. To conclude, that because it was deemed imprudent to entrust the trial of faets to three men who were required to publish the reasons of their decision for public criticism, therefore, the Constitution gives this power to one man, sitting in a Superior Court, without appeal or responsibility, and not required to give, much dess to publish, any reasons whatever, seems to me very much dike supposing that the Constitution meant to cure a mild disease by administering a deadly poison. The remedy really adopted was to require all issues to be tried by a jury, and therefore to forbid their trial in this Court which has no jury-

I pass now to the second class of reasons:

2. In Heileg v. Stokes, 63 N. C., 612, (June Term, 1869,) the Judge below had refused to vacate an injunction, and the defendant appealed. The propriety of his refusal depended on facts which were disputed. It was contended by the plaintiff *51that this Court could not review the judgment below, because the doing so required the trial of an issue of fact. This Court held that it had the right, and took the distinction which I now insist on, between questions of fact arising incidentally or otherwise than on the pleadings, and issues of fact joined on the pleadings. This decision has met the continued approval of the profession, and has been repeatedly acted on by this Court. It is clear, either that the phrase has the limited meaning which I attribute to it, or this decision was erroneous. Either the phrase is so limited or all questions of fact whatever, no matter when or how made, are “ issues of fact,” in the constitutional sense, and this Court cannot review the findings of the Judge below in any case. And if the construction were -consistently carried out, it would forbid this Court from finding any fact, either originally or on appeal. For the law is, that we shall try no issues of fact, without any exception. The Court could not punish contemptuous conduct, even .in its presence, because it would require the finding of a fact. Yet it had no scruples, and thought of no such construction in ex pa/rte Moore, 63 N. O., 397, where it found as a fact that certain persons had signed and published a certain writing. It would also forbid the Court from hearing any affidavit on a motion for a certiorari, or to amend its own records or to refer any question to its Clerk, which, nevertheless, it constantly and properly does. If we abandon the line of distinction which I draw, and hold all questions of fact to be issues of fact, in the sense of the Constitution, the Court can try none of them. For when the Constitution prescribes a law, it cannot be observed or not, as may be convenient, and where that classes all questions as issues of fact the Court can make no discrimination.

Again I do not know how the Court will decide upon the question, whether a party has a right to a trial by jury of a question of fact arising upon an an exception to a report. I am of opinion that he has not, because of the great inconvenience of such a course. But if I thought the exception raised an *52“ issue of fact,” in the sense of the Constitution, I should think otherwise. For a trial by jury, of issues of fact joined on the pleadings, has always been held guaranteed by sec. 19' of the Bill of Bights, and is given, (unless where it is waived by the party) by the strongest implication, by sec. 18, art. iv, of the Constitution, and by sec. 266, of C. C. P. If questions of facts made by exceptions, are not issues, so as to entitle a1 party to trial by jury, they cannot be issues, to exclude a review of a Judge’s finding by this Court. Again in numerous cases this Court has referred it to its clerk to find facts, which findings iff approved must be taken to be the findings of the Court, as the clerk has no judicial power.

In Greenlee v. Sudderth, 65 N. C. 470, it was referred to-the clerk to find the premiara on gold. In Boyden v. Bank of Gafe Fea/r, not reported on that point, to find whether certain checks had been drawn. In nearly every case brought against the State, the clerk has been directed to find and report the facts. In Whitford v. Foy, to state a guardian account; and there are many other instances of a similar practice, which I think proper, .but which are inconsistent with the doctrine that all these are issues of fact, and which if that be the doctrine, cannot be justified,

3-, The Constitution art. iv, sec. 23- says : “ The Superior shall be at all time& open for the transaction of all business within their jurisdiction, except the trial of issues of fact requiring a jury.” In McAdoo v. Benbow, 63 N. C. 461, this Court held that an act of Assembly,, which closed the doors of these courts, to a large part of the business within their jurisdiction for all but four weeks in the year, was. not repugnant to this clause. I do not mean to question that decision. I consider it res adjudicata. But some observations are necessary in order that I may extract from it the principle on which it was decided. Every decision should stand on some recognized principle of law more or less general. To admit that any one does not, is to admit that it stands on no principle, and is arbitrary and wrong. It must be conceded that the decision cited did *53some apparent violence to the language of the Constitution. It may be only a gentle violence. “ Molliier manus im/po-¡suitP Now, on what principle was the violence justified and the case decided 1 I humbly conceive on this. If a literal or strict construction of a clause in any statute will work a great public inconvenience, even if the language -be plain, a court is justified on that ground, “ in salutem rei-publicce,” to give it a construction which will avoid the inconvenience. It was argued indeed, in that case, that an observance of the clause was physically impossible, because the Judge could not be in court .all night and on Sundays. But this difficulty was purely imaginary, since evidently the legal construction was, that the court should be open at all reasonable times. Again, it was .said, that the court could not always be open, because the •Judge was required to hold courts in several counties, and could not be in any one all the time. But this is an evident fallacy, for the Judge is not required to be in court all the time, he being but one member of the court, and all the business to be done, in his absence, being that which the clerk had original jurisdiction to do.. So there was in fact no physical impossibilty, and the reason must have been what I have assigned. This principle goes to the verge of judicial power, and touches the borders of the “ higher law but I think within proper limits, it may be maintained, and it is affirmed by the ease cited. I do not think it necessary to call in the .aid of this principle to sustain my present views. But, when we consider the great public inconvenience, to say the least, which will follow irom the construction now proposed. I think áf there was .ever a case in which the principle of McAdoo v. Benbow, ought to weigh, it is this.

This construction gives to a Superior Court Judge not only the original, but the final .and irresponsible finding of a large class of facts, it may be of a most complicated character, and involving great values. His finding is subject to no review, it is made upon a bearing winch can scarcely be called public, in ¿he hurry and confusion .of term time. He gives no reasons ; *54the finding itself may be unknown except to the parties. Except in a case of gross and provable corruption, the irresponsibility could not be more complete. No Judge out of North Carolina, at least none in the United States or in England, has ever possessed such a power. It is at least liable to abuse, and is certain to be attended with occasional errors, which nevertheless, however patent, cannot be corrected. I think this court needlessly strips itself of a very important power which the Constitution intended to give it. I may be asked, if the Judges of the Superior Courts should not have this power, are we any more fit to have it than they ? Certainly it would be indecent and without a reason to claim for the Judges of this Court any greater uprightness or wisdom than I concede to those of the Superior Courts. But the1 power which I think belongs to this Court, is not that which I deny to the Superior Court Judges, but a different one. It is not to find originally and finally, but only finally on review, a power which must be lodged somewhere. And I do think, that with the advantages-which this Court has, in its numbers as insuring full discussion and patient deliberation, and with the original finding of the Judge with or without his reasons, it will often be able te> detect errors which escaped him, and which upon a second examination, are obvious enough.

When I claim for this Court the power to review on appeal the findings of the Judge, I do not understand it will be usu-ually, if ever, necessary to balance the credibility of witnesses', or to inquire anew into the primary facts and subordinate facts, from which the general or ultimate conclusion of fact, is inferred. Almost always the general facts which the Judge finds, and to which the principies of law are to be applied, are inferences from other facts or circumstances in evidence. The Judge'may mistake the bearing or weight oí these upon the general conclusion. Although the process by which he arrives-at his conclusion, is a reasoning from one or several facts, to a more general one, and is not a finding of the law,, or a legal *55inference from facts, yet it partakes of the nature of it, and is equally susceptible of, and proper for, review.

I believe the practice of all courts out of this State, conforms to this view.