Terry v. Brightman

Gray, C. J.

The justices of this court have long had the power of reserving and reporting, at their discretion, at any stage of the case,.for the determination of the full court, questions of law arising in any trial or other proceeding, civil or criminal; and this power has been recognized in each revision of the statutes of the Commonwealth. Rev. Sts. c. 81, § 26, and note of Commissioners. Gen. Sts. c. 112, § 10; c. 113, § 15. Shaw, C. J., in Higbee v. Bacon, 11 Pick. 423 , 428, 429.

But the Legislature has never seen fit to entrust so large a power to the judges of any inferior court, who have no share in discharging the burden thus imposed upon the full bench of this court. In criminal cases, the Court of Common Pleas and the Superior Court have been authorized to report, after conviction, and at the desire or with the consent of the defendant, important or doubtful questions of law; but neither of those courts has ever been authorized to report before conviction. St. 1832, c. 130, § 5. Rev. Sts. c. 138, § 12. Gen. Sts. c. 173, § 8. Commonwealth v. Intoxicating Liquors, 105 Mass. 468 . Commonwealth v. Byrnes, 126 Mass. 248 . In civil cases, the judges of the Court of Common Pleas had no authority to reserve questions *538 of law upon report. Goddard v. Perkins, 9 Gray, 411 , 412. Nor had the judges of the Superior Court of the County of Suffolk. St. 1855, c. 449. Upon the establishment of the Superior Court having jurisdiction throughout the Commonwealth, the judges thereof were authorized to report such questions after verdict only; and before the St. of 1878, c. 231, they had no power to report questions of law in civil cases tried without a jury. St. 1859, c. 196, § 32. Gen. Sts. c. 115, § 6. Lincoln v. Parsons, 1 Allen, 388 . Bearce v. Bowker, 115 Mass. 129 . Commonwealth v. Dowdican’s Bail, 115 Mass. 133 .

The St. of 1869, c. 438, which empowered the Superior Court, by consent of the parties to the suit, to report before verdict questions of law for the determination of this court, and thus for the first time enabled the judges of a lower court to call for the advice of the court of ultimate appeal in advance, before performing their own appropriate judicial functions as the court of original jurisdiction, was found extremely inconvenient in practice, by the frequent sending up to this court of questions obscurely and imperfectly presented for want of a full trial in the court below, and which, if the case had been fully tried there, might have become immaterial to the final result.

The St. of 1878, c. 231, has made important changes in the powers of the judges of the Superior Court in two respects. By § 1, it has authorized them, “ in any ease where the trial is by the court without a jury, after the finding upon the facts,” to report questions of law arising at the trial for the determination of this court “ in like manner as if a verdict had been rendered.” By § 2, it has repealed the St. of 1869, c. 438, and thus taken away the power of the Superior Court to report before verdict cases tried by a jury.

This statute clearly manifests the intention of the Legislature that cases in the Superior Court, whether tried with or without a jury, should be there decided, both upon the law and upon the facts, in the first instance, and that a verdict of the jury, or an equivalent finding of the judge, upon which judgment might be rendered, should be entered of record, before any question of law should be reported from that court to this. When the case is tried by a jury, the presiding judge must instruct them upon the questions of law applicable to the facts to be determined by *539 their verdict. When he tries the case without a jury, his finding upon the facts equally necessitates his passing upon the questions of law involved in that finding.

The present case having been reported to this court by the judge presiding in the Superior Court, without making any decision in matter of law, and before entering of record any such finding as is equivalent to the verdict of a jury, the Report must be dismissed