PIERCE L. MCCARTHY v. ALBERT L. GORDON.

BILL IN EQUITY , filed in the Superior Court as amended on November 10, 1910, for an accounting.

The case was heard by Pierce, J., who, upon a question raised by the defendant during the hearing, ruled "that it was open to him, in case he found that the plaintiff was entitled to an accounting, also on the same trial to determine what amount, if any, the plaintiff was entitled to recover." At the close of the evidence, the defendant asked the judge to make the following ruling: "Upon this hearing the only decree for the plaintiff that can be entered is a decree ordering an accounting or corresponding to the other prayers of the bill, and a decree for the payment of an amount of money as found due from the defendant to the plaintiff is not proper."

The judge refused to make this ruling. He found for the plaintiff in the sum of $932.60; and the defendant alleged exceptions.

C. R. Darling, for the defendant.

J. A. Coulthurst, for the plaintiff, submitted a brief.

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MORTON, J. The only question in this case is whether in case the judge found that the plaintiff was entitled to an accounting, as he did, it was open to him at the same trial to determine the amount, if any, which the plaintiff was entitled to recover. The matter is too plain for discussion. The practice no doubt is to send matters of account to a master, but it was optional with the judge to settle the account himself or send it to a master as he saw fit. The defendant admitted that the taking of the account at that time would not operate as a surprise to him. He is not shown to have been prejudiced in any way by the course that was pursued.

Exceptions overruled.