Burgess and Wife v. Wilkinson and Others

Supreme Court of Rhode Island

Burgess and Wife v. Wilkinson and Others

7 R.I. 31

DecidedMarch 6, 1861

StatusPublished

This text of 7 R.I. 31 (Burgess and Wife v. Wilkinson and Others) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burgess and Wife v. Wilkinson and Others, 7 R.I. 31 (R.I. 1861).

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Opinion

Ames, C. J.

After publication of the testimony taken before him, a master cannot receive an examination of witnesses, without a special order of the court; and this will only be granted upon the ground of surprise, and under the same circumstances that would induce the court to make such an order after publication has passed, before hearing. 2 Daniel. Ch. Pract. 1389. The same restrictions apply where the master examines witnesses, viva voce, under the 69th order of 1828. Trotter v. Trotter, 5 Sim. 338.

In any sense in which we 'may understand, in our practice, what is a publication of testimony, taken orally before the master, it must have passed under the facts disclosed in this case, and before the submission of the draft report to the parties; and the master could not, and the court would not, reopen the case for further testimony, not newly discovered, where the testimony had been closed, without mistake or surprise, with the assent of all parties.

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Ames, C. J.

After publication of the testimony taken before him, a master cannot receive an examination of witnesses, without a special order of the court; and this will only be granted upon the ground of surprise, and under the same circumstances that would induce the court to make such an order after publication has passed, before hearing. 2 Daniel. Ch. Pract. 1389. The same restrictions apply where the master examines witnesses, viva voce, under the 69th order of 1828. Trotter v. Trotter, 5 Sim. 338.

In any sense in which we 'may understand, in our practice, what is a publication of testimony, taken orally before the master, it must have passed under the facts disclosed in this case, and before the submission of the draft report to the parties; and the master could not, and the court would not, reopen the case for further testimony, not newly discovered, where the testimony had been closed, without mistake or surprise, with the assent of all parties.

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7 R.I. 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-and-wife-v-wilkinson-and-others-ri-1861.