Fisk v. Gray

100 Mass. 191

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1868
• Status: Published

Opinion

Hoar, J.

The assessor could not pass upon, much less decide the question of costs; but the appeal from the judgment of the court, which ordered full costs to be allowed, brings the question before us anew, and renders his report immaterial upon this point. We are of opinion that the allowance of full costs to the prevailing party was correct.

The action was upon a bond, which this court has decided to oe a penal bond, for the sum of one hundred dollars, to secure the performance of several covenants. Judgment was rendered for the penalty, under the provisions of the Gen. Sts. c. 133, § 9. Thereupon it. became the duty of the court to determine for what part of the penal sum execution should issue; and the aid of an assessor being had, the award of execution was for fifteen: dollars, as the amount then due in equity and good conscience. But this did not bring the case within the role as to costs which is given in the Gen. Sts. c. 156, § 5, that “ in personal actions brought originally in the superior court, if the plaintiff finally recovers a sum not exceeding twenty dollars for debt or damages, he shall be entitled to no costs.” The plaintiff had finally recovered one hundred dollars, and had judgment for that sum What sum he would be entitled to collect by execution would depend upon circumstances. If execution were awarded for but a part of the judgment in the first instance, he might have a scire facias for any future breach of the covenants in the bond, for which the judgment would stand as security. By the St. of 1786, 6. 52, § 3, if the plaintiff in an action on a contract recovered judgment for less than four pounds in a court of record, he could recover only a quarter as much costs as damages. By the Rev. Sts. c. 121, § 3, the language of a similar provision is, “ shall finally recover any sum not exceeding twenty dollars for debt or damages, whether in the court of common pleas or in the supreme judicial court.” The words “finally recover” in the General Statutes, as in the Revised Statutes, refer, as we think, to the ultimate judgment rendered in any court. The recovery of judgment in this case was for a debt of a hundred dollars.

The employment of an assessor to compute the amount due was directed by this court when the case was before us at a former stage. 11 Allen, 132. Although called an assessor, his duties were those of a master in chancery, the proceeding being in the nature of an equitable hearing, and a special appointment for such a purpose being proper. Certainly in that view, and perhaps under the statute authorizing the appointment of an auditor, (Gen. Sts. c. 121, § 46,) it was within the discretion of the court to avail itself of such an assistant in ascertaining the amount due to the plaintiff; and to act upon his report in fixing the amount for which an execution should be awarded. “ The term auditor designates an officer, either at law or in equity, assigned to state the items of debt and credit between parties, and exhibit the balance.” Whitwell v. Willard, 1 Met. 218. Where the object is the assessment of damages, to call such an officer an assessor is not a material departure from the fact, and does not invalidate the substantial correctness of the order of the court. Judgment affirmed.