Merchants' Nat. Bank v. Moulton

• Decision Date: 23 February 1887
• Parties: MERCHANTS' NAT. BANK OF NEWBURYPORT v. MOULTON and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 543

10 N.E. 251

MERCHANTS' NAT. BANK OF NEWBURYPORT v. MOULTON and others.

Supreme Judicial Court of Massachusetts, Essex.

February 23, 1887

COUNSEL

E.T. Burley, for defendants.

The fundamental question of fact in this case is one of fraud. If Pub.St. c. 167, § 69, applies to a case in equity, then it is submitted that defendants bring themselves within its provision. See rule 36 in chancery. The rights sought to be determined and enforced are essentially legal, as distinguished from equitable rights. Powers v Raymond, 137 Mass. 486; Harris v. Mackintosh, 133 Mass. 228. See Aldr.Eq.Pl. & Pr. 155-165, and cases cited. If defendants' claim to a trial by jury, ex debito justitioe, cannot be maintained, then he appeals to the discretion of the full court. Stockbridge Iron Co. v Hudson Iron Co., 102 Mass. 45.

H.G Nichols, for plaintiff.

The defendants are not entitled to a trial by jury as a matter of right. We suppose it is well established as a rule in chancery, on a hearing, an issue to try a matter of fact will be ordered or not, according to the sound discretion of the court. Ward v. Hill, 4 Gray, 595. An order granting or refusing such a trial is not a ruling upon a matter of law, but depends upon the discretion of the judge in each case. Davis v. Davis, 123 Mass. 591, 594; Ross v. New England Mut. Ins. Co., 120 Mass. 113; Brooks v. Tarbell, 103 Mass. 497. The case of Powers v. Raymond, 137 Mass. 483, does not in any way conflict with the former decisions of this court, and is distinguishable from the case at bar. The court in that case say: "This is a suit unknown in general equity jurisprudence." "Before St.1875, c. 235, the course of legal procedure was well known." "St.1875, c. 235, has given an additional mode of procedure in equity." Charles River Bridge v. Warren Bridge, 7 Pick. 365 et seq.; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45. The present bill is peculiarly within the class of cases which have from earliest times been recognized as within equity jurisdiction. 2 Story, Eq.Jur. § 378 et seq.; Pub.St. c. 151. The court will not interfere with the exercise of his discretion by the single justice, unless it clearly appears that he was wrong. Ruston v. Tobin, 10 Ch.Div. 558; Swindell v. Birmingham Syndicate, 3 Ch.Div. 127. Fraud by misrepresentation and concealment has always been tried in courts of equity, and there is no issue raised by the pleadings here that cannot be better tried before a single justice, or a master, than by a jury. The claim for a jury was not filed until long after the filing of the bill, and after the defendants had filed answers; and great delay would have been caused by framing issues for a jury at the next term of the court. Dole v. Wooldredge, 142 Mass. 161, 7 N.E. 832.

OPINION

MORTON C.J.

It is well settled that an appeal to the full court lies from the order of a single justice refusing to frame issues to a jury in an equity case, upon the application of one of the parties. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Harris v. Mackintosh, 133 Mass. 228.

The practice of this court has been general to order issues to be framed, upon the application of the defendant, when the right sought to be enforced by a proceeding in equity is essentially a common-law right, and where the facts in dispute are such as were tried by jury according to the use and practice at the time of and before the adoption of the constitution. It is deemed that this course best observes the spirit of the fifteenth article of the bill of rights. Thus in Franklin v. Greene, 2 Allen, 520, the question whether a note and mortgage was obtained by fraud and misrepresentation was submitted to a jury upon issues framed by the court. In Stockbridge Iron Co. v. Hudson Iron Co., ubi supra, in which the defendant brought a cross-bill to reform the contract upon which the plaintiff's bill was founded, the court ordered an issue to be framed upon the question whether an important clause was left out of the contract by a mutual mistake of the parties in draughting it. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. In Harris v. Mackintosh, 133 Mass. 228, which was a bill to restrain the defendant from carrying on his mill so as to pollute the waters of the stream, in which the answer of the defendant denied that the stream was polluted, and set up a prescriptive right to use the stream as he was using it, it was held that these issues of fact were proper for and should be submitted to a jury. In Powers v. Raymond, 137 Mass. 483, the bill was brought to reach and apply in payment of the plaintiff's debt, due by the defendants Raymond, property alleged to have been fraudulently conveyed to the defendant Salmon. The Raymonds denied that any debt was due, and it was held that upon this issue they had the constitutional right to a trial by jury. It was also held that, in the discretion of the court, the defendant Salmon...