It does not appear from the bill of exceptions in this case, what was the nature of the action ; but it must be taken for granted that it was properly referred to an auditor.
The case having been referred to an auditor, when it came on for trial in the court below the plaintiffs offered the report of the auditor in evidence. The defendant objected to its admission, because the auditor passed upon the question, whether one Ray, by whom the articles charged by the plaintiff in ac
The single question now presented is, whether or not it was within the scope of the authority of the auditor, for the purpose of stating the account between the parties, to consider and decide t.he question, whether or not Ray was the authorized agent of the defendant, to purchase, on his account, the goods charged by the plaintiff, in account against the defendant. This is a very simple question in form, but one of great uractical importance, vitally affecting the power, and consequently the usefulness of auditors. There are several cases in our reports, in which questions touching particular proceedings of auditors, have been raised and settled; but there is no case in which the general nature of their duties has been particularly considered, or in which their general powers have been examined and defined. It is desirable to ascertain the true principle upon which the question raised in the present case should be decided ; and to do so, it is necessary to look somewhat into the nature of the duties, and the extent of the powers, of an auditor.
The office of auditor is one of great antiquity in the common law. The old action of account was in use as early as the time of Henry III., and the auditor is an essential part of the machinery in that proceeding. In that action, if the plaintiff succeeds, there are two judgments. The first is, that the. defendant do account, quod computet, and auditors are there
But, beside the evils resulting from the restricted power of the auditor, and other defects in this mode of proceeding, the action of account, itself, applies only to particular classes of accounts; so that there were some cases in which mutual accounts could scarcely be adjusted, excepting through the medium of the court of chancery. Equitable relief was originally afforded in the court of chancery, in cases of account, on the ground that the remedy, in ordinary courts of law, was unsatisfactory and inadequate; and hence it came to be laid down as a rule, that such equitable relief should be granted in
The course of proceeding in cases of account, in chancery, has always been, when a case comes to a hearing, at once, to refer the matter to one or more of the masters, to take the accounts. The system of referring matters of account to the master, can be traced back to the time of Lord Bacon, whose order on the subject is as follows: “ But generally matters of accompt, excepting in very weighty causes, are not fit for the court, but are to be prepared by reference, with this provision, nevertheless, that t.he causes come first to hearing, and upon the entrance into a hearing, they may receive some direction, and be turned over to be considered and prepared.” Tothill, 49. The whole business cf taking and stating accounts, is done by the master. All questions of law and fact, which properly arise in the course of the proceeding, are heard and decided by him. He does not, like the auditor in the action of account, send issues to the court to be tried, but he, himself, decides all the questions as they arise, and keeps the whole, business under his own control, till he reports the final result. Such is the general course of proceeding, without stopping to consider separate and special reports, or particular and special orders and instructions of the court; all the proceedings of the master being, of course, subject to the general superintending power and control of the court. The final report of the master, made in pursuance of the order of reference, may be considered as somewhat analogous to the award of an arbitrator at law, subject' however to exceptions, and requiring the formal confirmation of the court. Notwithstanding the antiquity and importance of the office of master in chancery, it is understood that it has recently been wholly abolished in England, by act of parliament. The duties which have heretofore been performed by masters, are to be performed by the master of the rolls and the vice-chancellor, each to be assisted by two clerks, especially appointed for that purpose. This reference
It is believed that the action of account was never much in use in this commonwealth; and it was practically superseded by the statute of 1817, c. 142, which authorized the court to appoint auditors in common actions; and was wholly, and in terms, abolished by the revised statutes, c. 118, § 43. In the same section in which the action of account is abolished, it is provided that “ when the nature of an account is such, that it cannot be conveniently and properly adjusted and settled in an action of assumpsit, it may be done upon a bill in equity to be brought in the supreme judicial court, and the said court shall hear and determine the cause, according to the course of proceedings in chancery.” The course of proceedings in chancery, under this provision, would be, as we have seen, at once to refer the matter to a master in chancery, to take and state the account; before whom the whole matter woúld be heard and tried, and who would report the final result; and nothing would come before the court but the exceptions to the master’s report.
Besides this provision for adjusting accounts by a bill in equity, provision is made in the revised statutes for the appointment of auditors in suits at law, under which provision the question in the present case arises. The appointment of auditors therefore rests upon the authority of the statute, and their powers and duties are prescribed by statute. The provisions of the revised statutes are much more full and explicit, and indicate the powers and duties of the auditors more clearly and definitely, than those of the statute of 1817. By the revised statutes, c. 96, it is provided as follows:
“ Sect. 25. Whenever a cause is at issue, and it shall appear that the trial will require an investigation of accounts, or an examination of vouchers by the jury, the court may appoint one or more auditors to hear the parties, and examine their vouchers and evidence, and to state the accounts, and make report thereof to the court.”
Page 450“ Sect. 37. When there is more than one auditor, they shall all meet and hear the cause, but a report by a majority of them shall be valid.
“ Sect. 38. Witnesses may be summoned, and compelled to attend and testify before the auditors, in the same manner as before arbitrators or referees.”
“ Sect. 30. The report of the auditors, if there is no legal objection to it, may be used by either party as evidence on the trial before the jury; but it may be impeached and disproved by other evidence, produced on the trial by either party.”
In the case of Whitwell v. Willard, 1 Met. 316, the question was, whether that was a case, within the statute, in which the court would appoint an auditor without consent of parties. Though all the court were of opinion that it would be highly useful to refer the case to an auditor, and that a report would much facilitate the trial, and though the terms of the statute are very general, that “ whenever a cause is at issue,” &c., yet a majority of the court, looking at the particular terms of the act, put a construction upon it, which excluded from its provisions the case then under consideration, against the opinion of Mr. Justice Putnam, who held, that it was the intention of the legislature to authorize the court to appoint auditors in all cases, whether of contract or tort, where there was a necessity for such an examination of a great number of particulars, as could not be made by a jury, in the ordinary course of a trial, with any reasonable degree of certainty, as to the accuracy of results. The enlarged construction put upon the statute by Mr. Justice Putnam, would enable a court of law to avail itself of the aid of an auditor in cases involving an inquiry into particulars and details, in a manner similar to that in which a court of chancery is assisted by the services of a master.
But the inquiry, in the present case, is not in regard to the power of appointing an auditor, but in regard to the power of an auditor, properly appointed. The name has probably occasioned some misapprehension as to the power of an auditor. It seems to have been supposed that an auditor, under
The court are authorized to appoint one or more auditors. This enables the court to appoint such persons, and such a number of persons, as will be in every way safe and competent for the accomplishment of the business in hand, under the circumstances of each particular case. Whatever power the auditors may be held to possess, the court will see to it, that it shall be in every case intrusted to fit and competent hands, though their report is only primd facie evidence, and not necessarily conclusive. The auditors are to hear the parties, and of course they are to hear them for the purpose of deciding such matters as may be heard.
But in regard to what matters are the auditors to hear the parties, and to examine their vouchers and evidence ? In the words of the statute, “ they are to hear the parties; ” in the most general terms; they are to hear them as to every thing, without limit, and without restriction, bearing upon the matter which they have in charge, and the duty which they have to perform; that is, taking and stating an account. They
The statute further provides, that when there is more than one auditor, they shall all meet and hear the cause, but a report by a majority of them shall be valid. Here they are to hear the cause; not merely examine vouchers, and add up and subtract figures, but hear the cause, the whole cause; every thing appertaining to the matter of stating the account. The provision, for compelling witnesses to attend and testify before auditors in the same manner as before arbitrators and referees, gives to auditors the means of investigating accounts as fully, and in the same manner, as may be done by arbitrators and referees: and, providing the means, would seem to indicate that the auditors have the power of making such examination. So far as respects the investigation of accounts, therefore, the power of auditors is as general and extensive as that of arbitrators and referees; though their report is only primd facie evidence, and not conclusive and binding as an award.
The statute further provides, that “ the report of the auditors, if there is no legal objection to it, may be used as evidence on the trial before the jury; but it may be impeached and disproved by other evidence, produced on the trial by either party.” It is but primd facie evidence; but it is primd facie evidence, and may change the burden of proof. But of what is it evidence ? The statute does not say it shall be evidence, in a restricted sense, as to the vouchers or computations merely, but shall be evidence, in general terms; evidence of every thing properly considered by the auditor in stating the account, and of the true and just state of the account between the parties. Whatever the auditor finds necessary to do in the proper discharge of his appropriate duties, may be embraced in his report of his doings; and his report is evidence. upon the trial before the jury.
It has sometimes been said, that when a question arises before an auditor, he should leave it open, to be decided by
These general views, as to the authority of an auditor, are sustained by the decisions in particular cases in this court. In the case of Bradley v. Clark, 1 Cush. 293, it was decided that an auditor might hear and decide the question, whether or not goods charged in account were received and purchased on a barter account, as being “ directly within the range of inquiry, and of course within the scope of his authority.” In the case of Jones v. Stevens, 5 Met. 373, 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. In the case of the Commonwealth v. Cambridge, 4 Met. 35, it was held, that an auditor might hear and decide the question as to the value of labor which was the subject- of an account referred to him. In the case of Barnard v. Stevens, 11 Met. 297, it was held to be within the scope of the authority of an auditor, to hear and decide whether or not certain notes were due by the defendant
By a statute of Vermont, it is provided that the action of account may be sustained, among other things, on book account. It is further provided that, when judgment to account is rendered, “ the court shall appoint one or more judicious and disinterested men, to hear, examine and adjust the accounts between the parties.” The persons so appointed are called auditors. In the case of Stoddard v. Chapin, 15 Verm. 443, it was decided, that “ it is the duty of auditors to decide upon all questions of fact arising in the investigation of an account, and to deduce all inferences of fact which may be legitimately drawn from the evidence.” The same doctrine has been repeatedly and fully held in numerous decisions in the same court, though the report of the auditor is there binding and conclusive as an award of referees. So in the case of Brown v. Kimball, 12 Verm. 617, it was held, that “ when the plaintiff seeks to recover for labor, the particular terms of the contract under which the labor was performed, and whether the plaintiff fulfilled, or voluntarily abandoned his contract, are questions of fact, to be conclusively determined by the auditor.”
But it is not necessary further to extend the inquiry as to the general powers and duties of auditors. The question now before the court, and to which alone the decision of the court applies; is a very simple one. The question is, whether it was within the power of the auditor to hear and decide the question, whether Ray was the authorized agent of the defendant, to make the purchases, on his account, of the goods charged in account against him, by the plaintiff. It is very clear that, if the auditor had not power to settle that question, he had no power to do any thing. The auditor was to state the account between the parties; but whether or not there was any account between them, depended upon the question whether Ray was the defendant’s agent to make the purchases on his account. If Ray had no such authority, then the defendant had purchased no goods of the plaintiff, and there was no account between them. It was quite impossible therefore for the