Briggs v. Gilman

127 Mass. 530, 1879 Mass. LEXIS 134

Opinion

Gray, C. J.

The object of the statute by which the courts are authorized to refer cases to auditors, and to require their reports to be read as prima facie evidence at the’trial, although neither party may desire it, is to simplify and elucidate the issues to be tried. Gen. Sts. c. 121, § 46. Fogg v. Farr, 16 Gray, 396. Clark v. Fletcher, 1 Allen, 53. If one of the findings of the auditor appears to the court, upon the facts reported by him, to be erroneous in matter of law, or in excess of the authority conferred by the rule of reference, the jury may be instructed accordingly, and so much of his report stricken out, leaving the rest to have its proper weight and effect. Jones v. Stevens, 5 Met. 373. Ropes v. Lane, 9 Allen, 502. Morrill v. Keyes, 14 Allen, 222. Snowling v. Plummer Granite Co. 108 Mass. 100. Peru Steel Co. v. Whipple Manuf. Co. 109 Mass. 464. But an objection to a portion of the evidence upon which the auditor has based his conclusion cannot be taken, as matter of right, except by motion to recommit the report to the auditor before the trial. To allow such an objection to be taken for the first time at the trial, as a ground for rejecting the whole report and proceeding to trial without it, would defeat the purpose of the statute. Allen v. Hawks, 11 Pick. 359, 360. Jones v. Stevens, 5 Met. 373, 377. Kendall v. Weaver, 1 Allen, 277. Packard v. Reynolds, 100 Mass. 153. Kendall v. May, 10 Allen, 59, 65, 66. Fair v. Manhattan Ins. Co. 112 Mass. 320.

Kxceptions overruled.