Parker v. Nickerson

• Decision Date: 05 September 1844
• Citation: 137 Mass. 487
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Francis E. Parker & others v. Edward G. Nickerson

137 Mass. 487

Francis E. Parker & others v. Edward G. Nickerson

Supreme Court of Massachusetts, Suffolk

September 5, 1844

Bill in Equity, filed November 20, 1871, by Francis E. Parker Edward D. Sohier, and Samuel C. Cobb, who had been appointed by a decree of this court receivers of the East Boston Ferry Company, against the former treasurer of the company, for an account.

The bill alleged that the defendant, while treasurer, had received large sums of money belonging to the company, in selling bonds issued by the company, for which he had neglected to account; that he neglected to deposit in a bank certain sums of money received by him as treasurer, and used the same for his personal advantage; that he charged the company, for discounts alleged to be paid, larger sums of money than he actually paid; that he bought coal at one price and sold it to the company at a greater price; and that he used the revenue stamps belonging to the company in his own private business.

The answer denied the allegations of the bill; alleged that the defendant's accounts as treasurer had been approved and ratified by a committee appointed to examine them; and averred that, if the facts alleged in the bill were true, the plaintiffs had a complete remedy at law.

On April 28, 1879, the case was sent to a master, "to hear the parties and their evidence, find the facts, and report the same to the court."

At the hearing before the master, the oral evidence given was taken down and written out by a stenographer. The master heard the arguments of the parties on the merits of the case, and submitted to them a draft of his report. The defendant at this stage of the case filed a motion in court that the order of reference to the master be amended by adding at the end thereof the following: "together with such portions of the evidence taken before him as either party may desire." This motion was overruled; and the defendant appealed.

The master filed his report on February 13, 1883, and exceptions thereto were filed by both parties. On February 23, 1883, the defendant filed a motion to recommit the report to the master, with an order to report all the evidence taken before him upon the issues raised which were a matter of exception. This motion was overruled; and the defendant appealed.

On March 20, 1883, the defendant filed a motion that issues be framed for a jury. This motion was overruled; and the defendant appealed.

The case then came on to be heard before Holmes, J., upon the bill and answer, the master's report, and the exceptions thereto. The defendant, before being heard upon his exceptions, moved the court to try the case upon evidence and documents then to be offered by the parties; but this motion was denied, subject to the defendant's objection and right to appeal. The defendant, upon his exceptions to the master's report, involving questions of evidence and facts not stated in the report, proposed to offer evidence in addition to that reported by the master to establish said exceptions, notwithstanding the findings of the master. Upon the objection of the plaintiffs, the judge declined to permit the introduction of such evidence; and thereupon reserved the questions arising in said cause upon the bill and answer, the master's report and the several exceptions thereto, and the defendant's offer of evidence in connection with the questions of law arising upon the defendant's appeals for the consideration of the full court; such decree to be entered therein as justice and equity might require. The questions raised by the master's report and the exceptions thereto sufficiently appear in the opinion.

Plaintiffs entitled to recover of the defendant the sums of $ 1994.15, $ 1841.63, and $ 630.73, with simple interest, at the rate of six per cent per annum, from December 19, 1866 July 1, 1869, and October 18, 1869.

J. O. Teele, for the defendant.

C. A. Welch & C. W. Loring, for the plaintiffs.

Field J. Devens & C. Allen JJ., absent.

OPINION

Field, J.

The defendant's objection set up in the answer, that the plaintiffs' remedy was at law, if there was ever anything in it, was waived by proceeding, without objection, to a hearing before the master. Jones v. Keen, 115 Mass. 170.

The defendant complains that, under the practice shown in this case, all the issues in a cause may be sent to a master, and may be determined by him, without any report of the evidence; and that, if his report is confirmed, the cause is in effect determined by a master, without any opportunity of trying before a single justice, or before the full court, the principal questions of law and fact involved in the cause; and he contends that he has a right to have the cause tried in the first instance by a single justice, unless issues to a jury are framed, pursuant to the Pub. Sts. c. 151, § 11. Gen. Sts. c. 113, § 6. St. 1859, c. 237, § 1.

The statutes provide that "in proceedings in equity the evidence shall be taken in the same manner as in suits at law, unless the court for special reasons otherwise directs; but this shall not prevent the use of affidavits where they have heretofore been allowed." Pub. Sts. c. 169, § 66. Gen. Sts. c. 131, § 60. This was first enacted by the St. of 1852, c. 312, § 85. Before that statute, the chancery rules of this court provided that "all testimony shall be by deposition," except when an issue is tried by a jury; but it was competent for the court, "upon motion and cause shown, to order a trial or hearing before the court, on a matter of fact, upon oral testimony, with other competent evidence." Rule 29, 24 Pick. 417. The court adopted, as the outlines of its practice, the practice of the High Court of Chancery in England. Rule 34, 24 Pick. 419.

At that time, in England, the principal testimony in the cause was taken by examiners, upon written interrogatories, and any new testimony taken and used before a master was either taken upon written interrogatories, or viva voce before the master; but, if taken viva voce, it was reduced to writing by the master, "in order that the same may be used by the court if necessary." Orders in Chancery, No. 69, 2 Russ. Append. 24. It is therefore probable that in this Commonwealth, before the passage of the St. of 1852, c. 312, all the testimony taken before a master was reduced to writing by him.

The change in the mode of taking testimony in equity made by this statute did not affect the practice of the court to make references to a master, but it left the question whether the master should take the testimony in writing and report it to the court to be determined by the terms of the order of reference made in each cause.

The St. of 1859, c. 237, § 1, which provided that "all cases in equity, and all motions and other applications therein, whether interlocutory or final, shall, in the first instance, be heard and determined by some one justice of the Supreme Judicial Court," was not designed to affect the power of the court to make references to masters; but was designed to prevent any application for interlocutory or final decrees being made in the first instance to the full court. See St. 1859, c. 196, § 50. By the Rev. Sts. c. 81, § 20, (St. 1826, c. 109, § 1,) a single justice in vacation or in term time might hear motions and make interlocutory decrees, but the hearing for a final decree must be had by the court; and, before the Revised Statutes, it was thought that this must be by the court held by three or more justices; afterwards, it was considered that a hearing upon pleadings and proofs might be had by the court held by any one of the justices, pursuant to the Rev. Sts. c. 81, § 12. (St. 1804, c. 105, § 6.) An examination of the reports prior to the St. of 1859, c. 237, apparently shows that all of the equity cases reported, when heard upon demurrer, or upon bill and answer, or upon agreed facts, were heard in the first instance by the full court as raising issues in law; Rev. Sts. c. 81, § 13; and many of those heard upon a master's report, or upon pleadings and proofs, if the proofs were taken in writing, were heard by the full court, without having been first heard by the court held by a single justice. When the causes were heard by the court held by a single justice, there was no provision in the Revised Statutes for carrying to the full court questions of fact, although questions of law might be reported, or exceptions in matter of law taken. Eames v. Eames, 16 Pick. 141. Parker v. May, 5 Cush. 336, 356. Hancock v. Carlton, 6 Gray 39. Dorr v. Tremont National Bank, 128 Mass. 349.

Since the St. of 1859, c. 237, all applications for interlocutory or final decrees or orders must first be made to a single justice, and an appeal to the full court is allowed from all interlocutory and final decrees, and provision is made for reporting to the full court all evidence orally taken before a single justice; but there is no statute and no rule requiring a report of the testimony taken before a master. It is left wholly to the discretion of the court in each case to determine whether there shall be any reference to a master, and what shall be the terms of the reference; and the master is not bound to report all the evidence taken before him, unless the order of reference requires him to do so. From any order made by a single justice referring any matters in a cause to a master, or from an order refusing to require a master to report the evidence, or from an order refusing to send issues to a jury, an appeal lies to the full court; and except when the party is entitled as of right to a trial by jury, he is protected in these respects only by the judicial discretion exercised by the court.

The bill in this case was filed November 20, 1871. On April 28 1879, the...