Holmes v. Hunt , 1877 Mass. LEXIS 172 ( 1877 )

Gray, C. J.

The practice of referring matters of account to auditors as subordinate officers of the court is of very ancient origin. In the common law action of account, which was in use as early as the reign of Henry III., the court, upon rendering the interlocutory judgment quad computet, assigned auditors to take the accounts between the parties. But that form of action was restricted to a few classes of accounts; issues of law or of fact arising before the auditors were certified by them to the court for trial and determination by the court or by a jury ; and the auditors had no power to examine the parties on oath, until authorized so to do by the St. of 4 & 5 Anne, c. 16, § 27. For these reasons, the action of account fell into disuse, and the com fc of chancery assumed jurisdiction of cases of account, and the masters in chancery, who took the place of auditors, decided in the first instance all questions of law or of fact arising before them, subject to the control and revision of the court. Bac. Ab. Accompt. 1 Spence Eq. Jur. 649, 650. Locke v. Bennett, 7 Cush. 445, 446-448.

In the last century, and in the early part of the present, the action of account was in use in Massachusetts; but it was gradually superseded by the action of assumpsit in the nature of account, or for money had and received. Prov. Sts. 1703 (2 Anne) ; 1748 (22 Geo. II.) ; 1752 (25 Geo. II.) ; 1770 (10 Geo. III.) ; Anc. Chart. 378, 566, 590, 671. St. 1785, c. 48. Newman v. Homans, (1762) Quincy, 5. Jones v. Harraden, (1784) 9 Mass. 540 note. Sargent v. Parsons, 12 Mass. 149. 1 Dane Ab. 164, 169-171. Yelv. (Am. ed. ) 202 note. And this court, while it had no standing masters in chancery, (who were first appointed under the St. of 1826, c. 109, § 4,) was accustomed, in administering its then very limited equity jurisdiction, to refer matters of account to auditors. Lyman v. Warren, 12 Mass. 412. Pomeroy v. Winship, 12 Mass. 513, 525. See also Chappedelaine v. Deehenaux, 4 Crunch, 306; Field v. Holland, 6 Crunch, 8.

By the St. of 1817, c. 142, entitled “ an act for facilitating trials in civil causes,” it was provided that whenever, in any action, it should appear that an investigation of accounts or an examination of vouchers was necessary for the purposes of justice between the parties, the court might appoint an auditor or auditors to state the account between the parties and to make report thereof to the court, and that the report so made should, under the direction of the court, be given in evidence to the jury, subject however to be impeached by evidence from either party. Since the passage of that statute there is, we believe, but a single case of an action of account in our books. Fowle v. Kirkland, 18 Pick. 299.

In Fanning v. Chadwick, 3 Pick. 420, decided in 1826, it was observed by Mr. Justice Wilde that there would seem to be no necessity for reviving the action of account, because justice might be administered in a form more simple and less expensive, by an action of assumpsit, which, since the court had been authorized to appoint auditors, had all the advantages, without the disadvantages, peculiar to an action of account. And for this reason the action of account was abolished by the Revised Statutes. Rev. Sts. c. 118, § 43, and Commissioners’ note.

In Allen v. Hawks, 11 Pick. 359, decided in 1831, it was held that, under the St. of 1817, the report of an auditor was primd facie evidence, but did not prevent a party dissatisfied with it from calling at the trial a witness who had testified before the auditor. Chief Justice Shaw said that the effect of the statute, the reference and report was to introduce a new species of competent evidence, often a very useful one, and to facilitate, not to supersede jury trials, by narrowing down the points of controversy before the jury, and by enabling the party, going into court armed with legal primd facie evidence in his favor, to be prepared to confine his evidence and to give his exclusive attention to the real points in controversy between the parties ; and that “ a report of auditors does not, like an award of referees, stand in place of a trial, but is merely received as competent evidence.” The remark of the Chief Justice in the course of the opinion, that a “ useful and very important effect of a report is to change the burden of proof,” is not to be taken as indicating that the report changes the burden of proof, technically speaking, but only as signifying that it makes out a primd facie case, and obliges the other party to offer evidence to rebut or control it, or else it will be conclusive. Morgan v. Morse, 13 Gray, 150.

The opinion of the Chief Justice in Allen v. Hawks, as well as that of Mr. Justice Wilde in Fanning v. Chadwick, clearly shows that it had not occurred to the court that there was anything unconstitutional in giving to an auditor’s report upon a matter of account the effect of primd facie evidence at the trial before a jury.

It is contended that it was not within the province of the auditor to pass upon the general question of the defendant’s liability to the plaintiff. In support of this position, the case of Jones v. Stevens, 5 Met. 373, is relied on. But, as observed by Mr. Justice Fletcher in Locke v. Bennett, 7 Cush. 453, “the decision turned upon the particular facts and circumstances of that case, and does not throw any light upon the inquiry as to the general powers and duties of an auditor.” It was an actian for work, which the defendant contended had been done for him by the plaintiff and one Howarth jointly. Evidence was introduced by both parties before the auditor, upon the question whether the work was done by the plaintiff alone or by the plaintiff and Howarth jointly, and also upon the question whether there was a partnership between the plaintiff and Howarth. The auditor found a certain sum due from the defendant to the plaintiff, and in his report stated certain facts bearing upon the question of partnership. The judge who presided at the trial in the Court of Common Pleas instructed the jury that the report of the auditor was primd facie evidence on the question whether any work was done by the plaintiff for the defendant, and of the value thereof; that if the work was done by the plaintiff and Howarth jointly, the plaintiff was not entitled to recover in this action; that the jury might properly consider the facts stated in relation to the partnership, but that it was not competent for the auditor to pass upon the question of partnership, and they should exclude from their consideration so much of his report as passed upon that question. This court held that the defendant had no ground of exception.

It is evident that the only point adjudged in Jones v. Stevens was that there was no error in the admission of the auditor’s statement of certain facts bearing upon the question of partnership ; for the ruling at the trial, that the auditor had no power to pass upon the question of partnership, was in favor of the defendant, and had not been excepted to. The dictum of Mr. Justice Hubbard, that “those matters of defence which go in bar of the action, or which are not matters of account, are not to be passed upon by an auditor, and, if done without consent of parties, should be stricken from the report, or the report itself should be recommitted or rejected,” must be limited to such matters as are not included in the order of reference, as sufficiently appears by the rest of his opinion, and as is clearly settled by a series of earlier and later decisions, which hold that the report of an auditor is primd facie evidence, not merely of the result of the accounts, but of the facts or inferences stated in his report, aa Jerived from the evidence before him and involved in the determination of the issues referred to him, including, when necessary to the determination of these issues, his finding upon the general question whether, and to what extent, the defendant is or is not liable to the plaintiff. Lazarus v. Commonwealth Ins. Co. 19 Pick. 81. Locke v. Bennett, 7 Cush. 445, 453. Nolan v. Collins, 112 Mass. 12. Fair v. Manhattan Ins. Co. 112 Mass. 320, 328-332. Lowe v. Pimental, 115 Mass. 44. Corbett v. Greenlaw, 117 Mass. 167.

The provisions of the St. of 1817 have been substantially reenacted upon each revision of the statutes of the Commonwealth. Rev. Sts. c. 96, §§ 25-31. Gen. Sts. c. 121, §§ 46-50. They have been constantly applied in practice, and repeatedly expounded by this court, without a doubt of their validity being suggested, for nearly sixty years. After so long a practical construction and acquiescence, by the Legislature, by the courts, and by all parties to judicial proceedings, it would require a very clear case to warrant the court in setting them aside as unconstitutional. Stuart v. Laird, 1 Cranch, 299, 309. Packard v. Richardson, 17 Mass. 122, 144. Commonwealth v. Parker, 2 Pick. 550, 557.

But it does not appear to us that, if these statutes had been just enacted for the 'first time, there would be any ground for holding them to be unconstitutional. While the right of trial by jury in actions at law is secured by the Constitution, the forms of proceeding and the rules of evidence are within the control of the Legislature.

It has generally been held, in criminal as well as in civil cases, that a statute allowing a trial by jury on appeal from a judgment of a magistrate, and upon giving bail for the defendant’s appearance in the one, and security for the prosecution of the appeal and for costs in the other, does not impair the constitutional right. Jones v. Robbins, 8 Gray, 329, 341, 342, and cases cited. Hapgood v. Doherty, 8 Gray, 373. And in civil cases the Legislature may impose the condition that the defendant shall make affidavit that he has a valid defence. Hunt v. Lucas, 99 Mass. 404. Biddle v. Commonwealth, 13 S. & R. 405.

The constitutional power of the Legislature to prescribe rules of evidence is well settled. Parsons, C. J., in Kendall v. Kingston, 5 Mass. 524, 534. Washington, J., and Marshall, C. J., in Ogden v. Saunders, 12 Wheat. 213, 262, 349. This power has been often exercised by the Legislature, with the sanction of the courts, so as to change the burden of proof, or to affect the question what shall be deemed primd facie evidence at the trial before the jury.

For instance, the Legislature may enact that the deed of a collector of taxes shall be primd facie evidence that the land has been sold for non-payment of taxes at a time and in a manner authorized by law. Pillow v. Roberts, 13 How. 472, 476. Callanan v. Hurley, 93 U. S. 387. Hand v. Ballou, 2 Kernan, 541. Cooley on Const. Lim. (3d ed.) 367, 368. So it may enact that the record of a deed shall be evidence that it has been duly acknowledged or proved before a magistrate, without any record of the certificate or of the proof of acknowledgment. Webb v. Den, 17 How. 576. A statute providing that a notary’s protest of a promissory note should be evidence of the facts stated therein has been held by the Supreme Court of Maine to be constitutional, and applicable to a protest made before its passage. Fales v. Wadsworth, 23 Maine, 553. By our own statutes, the recorded certificate of two witnesses is made sufficient evidence of an entry to foreclose a mortgage, and the affidavit of the mortgagee himself evidence that the requisitions of a power of sale have been complied with. Gen. Sts. c. 140, §§ 2, 42, 43. Hawkes v. Brigham, 16 Gray, 561. Ellis v. Drake, 8 Allen, 161, 163. Thompson v. Kenyon, 100 Mass. 108. Childs v. Dolan, 5 Allen, 319. Field v. Gooding, 106 Mass. 310, 312.

Mr. Justice Story gave the fullest effect to an act of Congress which provided that the certificate of a vice consul, that a master had refused to take a destitute seaman on board, should be primd facie evidence in a suit against the master for the peqalty imposed on him for such refusal. U. S. St. February 28, 1803, § 4. U. S. Rev. Sts. § 4578. Matthews v. Offley, 3 Sumner, 115, 123. The statutes of this Commonwealth have imposed upon the defendant in criminal prosecutions the burden of proving any license, appointment or authority, relied on as a justification, which the Commonwealth, but for these statutes, would have been obliged to disprove. Sts. 1844, c. 102; 1864, c. 121. Gen. Sts. c. 172, § 10. Commonwealth v. Thurlow, 24 Pick. 374. Commonwealth v. Kelly, 10 Cush. 69. Commonwealth v. Lahy, 8 Gray, 459. Commonwealth v. Carpenter, 100 Mass. 204. Even statutes providing that, in prosecutions for unlawful sales of intoxicating liquors, delivery in or from any building or place other than a dwelling-house “ shall be deemed primd facie evidence of a sale,” have been held constitutional. Sts. 1852, c. 322, § 12; 1855, c. 215, § 34. Commonwealth v. Williams, 6 Gray, 1. Commonwealth v. Rowe, 14 Gray, 47. See also State v. Cunningham, 25 Conn. 195; State v. Hurley, 54 Maine, 562; U. S. St. July 18, 1866, § 4; U. S. Rev. Sts. § 3082.

In Goshen v. Richmond, 4 Allen, 458, it was held that the provision of the St. of 1845, c. 222, reenacted in the Gen. Sts. c. 107, § 2, that “ the validity of a marriage shall not be questioned in the trial of a collateral issue, on account of the insanity or idiocy of either party, but only in a process duly instituted in the lifetime of both parties for determining such validity,” applied to marriages existing at the time of its passage; and Mr. Justice Metcalf, delivering the opinion of the court, said: “ The defendants deny that it was the intention or within the power of the Legislature to make this enactment retrospective, that is, to prohibit the admission of evidence to show the invalidity of previously existing marriages. But the court do not doubt either that intention or that power of the Legislature. That body has unquestionable authority to change the common law rules of evidence, to prescribe the modes of proof, and to direct who may or may not be competent witnesses. And this authority has often been exercised. Thus, the burden of proof, which by the common law is on one party, has in certain cases been put, by statute, on the other. And recent statutes have so far changed the preexisting rules of evidence, as to make all persons (with very few exceptions) who have sufficient understanding, competent witnesses, not only in the trial of others’ actions, but also of their own. Those statutes have been held to render these persons competent to testify, not only concerning matters of which they had knowledge before they were made competent, but also in cases that were pending before.” See also Monson v. Palmer, 3 Allen, 551, 556. The existing witness act omits the exception (contained in the statutes in force when that opinion was delivered) of the case in which one party to the original contract or cause of action is dead or insane, and all other exceptions, in civil cases, save that of private conversations between husband end wife. St. 1870, c. 393.

In a very recent case, it was held by the Court of Appeals of New York, that a special statute authorizing testimony as to the title to a certain estate to be perpetuated under the direction of the court of chancery, and making it primd facie evidence of the facts set forth in the examination of the witnesses, if the Chancellor should be of opinion that the depositions furnished good primd fade evidence of such facts, but not giving any adverse party the right of cross-examination, was within the constitutional authority of the Legislature. And the court said: 66 The rules of evidence are not an exception to the doctrine that all rules and regulations affecting remedies are, at all times, subject to modification and control by the Legislature. The changes which are enacted' from time to time may be made applicable to existing causes of action, as the law thus changed would only prescribe the rule for future controversies. It may be conceded, for all the purposes of this appeal, that a law that should make evidence conclusive, which was not so necessarily in and of itself, and thus preclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property, or a destruction of vested rights. But such is not the effect of declaring any circumstance or any evidence, however slight, primd facie proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence. That this may be done is well settled by au thority.” Howard v. Moot, 64 N. Y. 262, 268.

The statutes allowing every party to testify in his own behalf, even after the death of the other party to the original contract or cause of action, the statutes making deeds of public officers, or conveyances recorded at the mere request of the grantee, or ex parte affidavits, without opportunity of cross-examination, primd facie evidence, and the statutes making particular facts primd fade evidence against defendants in criminal prosecutions, aL appear to us to have worked greater changes in the position of the parties at the trial before the jury, than a statute that merely gives the effect of primd fade evidence to an auditor’s report, made after full hearing of both parties, and upon a matter involving the investigation of accounts, which cannot, in the view of the Legislature that framed the statute, and of the court that makes the order of reference in the particular case, be con* veniently or intelligently tried by a jury, without the assistance of a previous examination and report by an auditor. And we do not find anything, in the authorities cited at the bar, that creates any doubt in our minds upon this subject.

In United States v. Rathbone, 2 Paine, 578, the only point decided was that the Constitution and laws of the United States did not authorize a federal court, sitting in the State of New York, to order a case to be referred to arbitration, in accordance with a statute of that state. Mr. Justice Thompson said: “ How far this view of the case may affect the validity of the state law is a point not drawn in question, or intended to be considered.” 2 Paine, 583. And the constitutionality of that statute has since been affirmed by the Supreme Court of that state. Lee v. Tillotson, 24 Wend. 337.

In Plimpton v. Somerset, 33 Vt. 283, and Copp v. Henniker, 55 N. H. 179, actions for damages for defects in highways, not involving any investigation of accounts, had been referred to commissioners or referees, under statutes which provided that their reports should be primá facie evidence upon a subsequent trial before a jury. The decision of a majority of the court in Plimpton v. Somerset, that such a statute, as applied to such a case, was unconstitutional, could not be extended to the case of an account, consistently with the previous decisions of the same court in Brown v. Kimball, 12 Vt. 617, and Stoddard v. Chapin, 15 Vt. 443. In Copp v. Henniker, the court held the provision for the appointment of a referee to be valid, and did not decide pan the validity of that part of the statute which provided that his report should be evidence upon a trial before a jury; and the only judge, who made any remarks on that point, said in regard to the auditor law of New Hampshire of 1823, which was copied from our St. of 1817: “ The validity of an act, which has been in such extensive operation and universally acquiesced in for fifty years, will probably not be questioned.” 55 N. H. 209. The constitutionality of the New Hampshire statute of 1823 has since, upon elaborate consideration, been fully established. Doyle v. Doyle, 56 N. H. 567. Perkins v. Scott, 57 N. H. 55.

In King v. Hopkins, 57 N. H. 334, which was an action on the case for flowing the plaintiff’s land, it was decided that the provision which made the report of referees evidence at the trial before the jury was unconstitutional. But the weight of that decision as an authority is greatly impaired, to say the least, by the fact that it was made, under the peculiar judicial system existing at the time in that state, by one justice of the Superior Court of Judicature and one judge of the Circuit Court, against the dissent of the Chief Justice of the Superior Court, and reversing the ruling of the third justice of the Superior Court, who presided at the trial — so that the final result was against the opinion of a majority of the judges of the highest court of the state. And we are not now required to pass upon the validity of such a provision, as applied to a case which does not call for the investigation of accounts, but presents a simple issue of fact or of damages, suitable for the determination of a jury in the first instance.

The only case, cited by the learned counsel for the defendant, which supports his position, is Francis v. Baker, recently decided by the Supreme Court of Rhode Island, in which a statute, substantially corresponding to our own, was held unconstitutional, as impairing the right to trial by jury. The respect due to a decision of the highest court of a neighboring state, and the ability of the argument which has been addressed to us, have induced us to treat the matter at more length than we should otherwise have thought necessary; but, after full consideration, we are unanimously of opinion that neither that decision, nor the reasons assigned in support of it, are sufficient to justify us in overturning the law of this Commonwealth, as established, upon what appear to us to be firm foundations, by the practice of more than half a century.

In the other rulings on questions of evidence, no error appears. The original entries on the plaintiff’s books, charging the goods to C. S. Hunt & Co., were not conclusive against the plaintiffs. Allen v. Fuller, 118 Mass. 402. The testimony of one of the plaintiffs, as to the circumstances under which those entries were altered so as to be charges against the defendant, was competent to explain the apparent alteration in the books. Evidence of the financial reputation of C. S. Hunt & Co. was rightly rejected upon the issue whether the plaintiffs looked to them or to- the defendant for payment, because the fact, if proved, that their financial reputation was good, had of itself no tendency to show that the plaintiffs sold to them, and it had no tendency to contradict the testimony of one of the plaintiffs that he did not know them at all. As the letter to Allen, which had been put in evidence by the defendant as an admission of the plaintiffs, did not show, upon its face, the transaction to which, or the persons to whom it related, the testimony of one of the plaintiffs was admissible to explain it. Blake v. Stoddard, 107 Mass. 111. The ruling, that the fact that the defendant insured “for whom it might concern ” could be shown only by the policies of insurance, affords no ground of exception, the defendant having been allowed to testify that he charged the premiums to C. S. Hunt 5b Co., and was paid therefor by them.

The bill of exceptions clearly shows that the opinion expressed by the presiding judge, as to the testimony offered by the plaintiffs in rebuttal, was intended by him and was treated by the parties as a mere ruling upon the competency of that testimony and the propriety of admitting it at that stage of the case, and not as an instruction to the jury upon the burden of proof. . Exceptions overruled.