the plaintiff." The decree or order for the issue should specify a time when it is to be tried.12 If the plaintiff make default in having the case ready for trial at the appointed time,13 or either party fail then to appear, the court will order the issue taken pro confesso against him, unless he can show a reasonable ground for a postponement. It seems that an application for a postponement,15 or for a special jury, if one be desired,16 should be made to the judge who directed the issue. A person interested in the result of an issue, but who refuses to be a party to it, may be allowed to attend the trial by counsel, in which case he may be compelled to produce documents material to the case and in his possession." After the trial, the trial judge certifies how the verdict was found, but judgment should not be entered upon it.18 If any special circumstances have occurred at the trial which he thinks it right to report to the court, he indorses the postea.19 He may also furnish to the court of equity a description of the trial.20 An irregularity or omission in this respect may, however, be corrected or disregarded.21

$305. Effect of the finding of a jury upon an issue. "The verdict of a jury upon an issue out of chancery is only advisory and never conclusive upon the court. It is intended to inform the conscience of the Chancellor. It may be disregarded, and a decree rendered contrary to it." If, therefore, either party be dissatisfied, he must move for a new trial on the equity and not on the common-law side of the court; "and for that purpose the party applying for a new trial must procure notes of the proceedings and of the evidence given at the trial for the

11 Wilson v. Ginger, 2 Dick. 521; Hartland v. Dancocks, 5 De G. & Sm. 561.

12 Daniell's Ch. Pr., ch. xxvi, § 1. 13 Bearblock v. Tyler, 1 J. & W. 225; Casborne v. Barsham, 5 M. & C. 113.

14 Casborne v. Barsham, 5 M. & C. 113; Hargrave v. Hargrave, 8 Beav. 289.

15 Kebel v. Philpot, 9 Sim. 614.

16 Anon., 2 P. Wms. 68. As to depositions, see Cahoon v. Ring, 1 Cliff. 592.

17 Pindar v. Smith, Mad. & Geld. 48.

2

18 Kerr v. S. Park Com'rs, 117 U. S.

379.

19 White v. Lisle, 8 Swanst. 342; Trenton B. Co. v. Russell, 1 Green, Ch. (N. J.) 492.

20 Bassett v. Johnson, 1 Green, Ch. (N. J.) 154.

21 Wilson v. Riddle, 123 U. S. 608. § 305. Bradley, J., in Watt v. Starke, 101 U. S. 247, 252. See also Basey v. Gallagher, 20 Wall. 670; Allen v. Blunt, 3 Story, 742, 746.

2 Watt v. Starke, 101 U. S. 247, 250; Johnson v. Harmon, 94 U. S. 371, 378.

use of the Chancellor. This is done either by moving the Chancellor to send to the judge who tried the issue, for his notes of trial; or procuring a statement of the same in some other proper way. The Chancellor then has before him the evidence given to the jury, and the proceedings at the trial, and may be satisfied, by an examination thereof, that the verdict ought not to be disturbed. The evidence and proceedings then become a part of the record, and go up to the court of appeal if an appeal is taken."3 Unless such a motion is made, no error committed in the course of the trial of the issue can be reviewed upon appeal. Such an application should be made by motion or petition before the cause comes on for hearing upon further directions. The form of an issue cannot, however, be changed in this manner. A party desiring to alter it must do so by presenting a petition for a rehearing of the decree or order directing it. The manner in which the verdict is reviewed in equity is thus described by Lord Eldon: "In considering whether, in such a case as this, the verdict ought to be disturbed by a new trial, allow me to say that this court, in granting or refusing new trials, proceeds upon very different principles from those of a court of law. Issues are directed to satisfy the judge, which judge is supposed, after he is in possession of all that passed upon the trial, to know all that passed there; and looking at the depositions in the cause, and the proceedings both here and at law, he is to see whether, on the whole, they do or do not satisfy him. It has been ruled over and over again, that if, on the trial of an issue, a judge reject evidence which ought to have been received, or receive evidence which ought to have been refused, though in that case a court of law would grant a new trial, yet if this court is satisfied, that if the evidence improperly received had been rejected, or the evidence improperly rejected had been received, the verdict ought not to have been different, it will not grant a new trial merely upon such grounds."

3 Bradley, J., in Watt v. Starke, 101 U. S. 247, 250, 251. See also Johnson v. Harmon, 94 U. S. 371.

4 Brockett v. Brockett, 3 How. 691; Johnson v. Harmon, 94 U. S. 371; Watt v. Starke, 101 U. S. 247.

The usual grounds for di

5 Atty. Gen. v. Montgomery, 2 Atk. 378; Van Alst v. Hunter, 5 J. Ch. (N. Y.) 148, 152.

6 Daniell's Ch. Pr. (3d Am. ed.) 1114. 7 Lord Eldon in Barker v. Ray, 2 Russ. 63. See also Bootle v. Blundell,

recting a new trial of an issue are, "1st, the alleged improper summing up of the judge; 2dly, because the weight of evidence is against the verdict; and 3dly, because of an informality in the evidence." Surprise and fraud are also reasons for grant

ing a new trial. When the dispute concerns the title to land, in imitation of courts of law two trials of the issue have often been granted, when the first verdict was satisfactory upon the evidence; 10 and sometimes the court has directed a second trial for the solemn determination of the matter, without setting aside the first verdict, the effect of which was that the first verdict was admitted in evidence upon the second trial, and had its weight with the jury." In such case, the court usually made it a condition of granting a second trial, that the applicant should pay to the other party the costs of the first.12

§ 306. Proceedings after the trial of an issue. After the trial of an issue and the completion of the record by the addition of the postea, the cause, unless a new trial is obtained, should be set down for hearing. This may be done in the usual manner; but it seems, not before the expiration of the first four days of the term following the trial, in order that the party against whom the verdict has been found may have an opportunity of moving for a new trial. The cause then comes on in the regular course, when such final or other decree as is proper is pronounced. The costs of an issue do not follow the verdict as a matter of course, but are in the discretion of the court which directed the issue; though they are usually given to the party in whose favor the verdict was rendered." In one case the court ordered an advance out of a fund in its possession, in order to enable the parties to try an issue directed by it."

19 Ves. 494; Tatham v. Wright, 2 Russ. & M. 1; Watt v. Starke, 101 U. S. 247, 252.

8 Smith's Ch. Pr. (Phila. ed.), vol. ii, p. 84. See also Tatham v. Wright, 2 Russ. & M. 1; Watt v. Starke, 101 U. S. 247, 253.

9 Exton v. Turner, 2 Ch. Cas. 80; Standen v. Edwards, 1 Ves. Jr. 133.

10 Earl of Darlington v. Bowes, 1 Eden, 271; Stace v. Mabbot, 2 Ves. Sen. 552.

3

11 Baker v. Hart, 3 Atk. 542.

12 Baker v. Hart, 3 Atk. 542; Edwin v. Thomas, 1 Vern. 489.

§ 306. 1 Allen v. Blunt, 3 Story, 742; Daniell's Ch. Pr., ch. xxvi.

21 Newland's Ch. Pr. 357.

3 Decker v. Caskey, 2 Green Ch. (N. J.) 446.

4 Corporation of Rochester v. Lee, 2 De G., M. & G. 427.

5 Coombs v. Brooks, 3 De G. & S. 452.

CHAPTER XXIII.

PROCEEDINGS IN A MASTER'S OFFICE.

§ 307. References to masters in general. The labors of a judge of a court of equity are often materially lightened by referring the consideration of matters of fact to a master in chancery, who is directed by it to investigate the same and report his opinion thereon to the court. Certain ministerial acts which a court of equity undertakes are also performed by it through a master. The matters which are ordinarily referred to masters in chancery are inquiries, as to whether pleadings or other proceedings in a suit in equity contain impertinence or scandal; as to who are the heirs, next of kin, creditors, or members of a particular class of legatees of a person whose estate is in the hands of the court for distribution; as to whether the title to real estate is good; as to the state of the law of a foreign country; as to whether one of two books or other publications is pirated from the other; as to the amount of damage suffered by the granting or withholding of an injunction; the taking of accounts; the computation of interest; the settlement of conveyances, and other deeds; the selling of property; the appointment of trustees, receivers, and guardians; and the superintendence of the performance of their duties by receivers. The decision of the case or of the issues joined by the bill, answer and replication cannot be referred to a master except by consent. The extent of a master's authority is limited by the decree or order appointing him;2 and it has been said that it cannot be extended even by consent. The rules provide that "every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master to whom it is referred to take the same to inquire and state to the court what parts, if any, of such personal estate are outstanding un

§ 307. 1 Kimberley v. Arms, 129 U.S. 512, 523, 524; Morris v. Taylor, 23 N. J. Eq. 131.

2 Lonsdale Co. v. Moies, 2 Cliff. 538.

3 Farmers' L. & Tr. Co. v. Central R. Co. of Iowa, 2 Fed. R. 656; Gordon v. Hobart, 2 Story, 243.

Where

disposed of, unless the court shall otherwise direct." no objection to the language of an order of reference was made for several years, and in the meanwhile one of the parties had died, the Circuit Court of Appeals refused to modify it on an appeal from the final decree. The order appointing a standing master need not be recorded in any book; nor need he be required to file a book."

2

§ 308. Who may be appointed master.-The Circuit Courts, "both the judges concurring in the appointment," have the power to appoint standing masters in chancery in their respective districts.1 A Circuit Court may also appoint a master pro hac vice in any particular case. A statute provides that "no clerk of the District or Circuit Courts of the United States, or their deputies, shall be appointed a receiver or master in any case, except where a judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment." Another statute provides that "no person related to any justice or judge of any court of the United States by affinity or consanguinity, within the degree of first cousin, shall hereafter be appointed by such court or judge to be employed by such court or judge in any office or duty in any court of which such justice or judge may be a member."4

4 Rule 73.

Gunn v. Black, 60 Fed. R. 151. 6 Seaman v. N. W. Mut. L. L. Co., 86 Fed. R. 493.

§ 308. Rule 82. 2 Rule 82.

320 St. at L., ch. 183, p. 415. It has been held that this prohibition is for the benefit of the parties to the litigation, and may be waived by their consent to an order appointing such an officer master in a particular case; that after such an order or decree has thus been entered and the parties have proceeded before the master, it may be amended by the insertion of a clause stating that the court has determined "that such consent is a sufficient special reason for such appointment," Fischer v. Hayes, 22 Fed. R. 92, and that an order which omits the assignment of any reason

for the clerk's appointment is irregular but not void, and cannot be questioned in a collateral proceeding, as by exceptions to his report of a sale, or by a motion to set aside an appraisal by him. N. W. Mut. L. L Co. v. Seaman, 80 Fed. R. 357; & c. in C. C. A., Seaman v. N. W. Mut. L. L. Co., 86 Fed. R. 493.

424 St. at L., p. 552, ch. 373, § 7. A final decree entered upon the report of a master whose appointment was forbidden by this statute is not void, and cannot be set aside upon motion at a subsequent term. Farmers' L. & Tr. Co. v. Iowa Water Co., 80 Fed. R. 467. Whether the statute forbids the appointment of a man who has married a sister of the judge's wife is an open question. Farmers' L & Tr. Co. v. Iowa Water Co., 80 Fed. R. 467, 469.