court is officina justitiæ, out of which all originall writs and all commissions which passe under the great seal go forth, which great seal is clavis regni, and for those ends this court is ever open."1 It must not be understood that this summary of the history of the court of chancery is intended to include any changes made in the system in recent years, but, on the contrary, I have purposely confined myself to the "system as it existed in England from the earliest times to the end of Lord Eldon's chancellorship." In 1852 by statute the whole system of equity was remodeled in England, and "the office of master in chancery was wholly swept away." How these changes were brought about and what are the practical workings of the new system would be interesting subjects of investigation but wholly foreign to my present purpose. The limited amount of space available for this introductory chapter prevents anything more than a bare summary of what I would like to give, but the reader interested in the subject, and especially the student, will find it profitable to follow up the original sources cited in the foot-notes. 14 Coke's Inst. 79. Langdell's Sum. of Eq. Pl. 33. Kerly, Eq. Juris. 283. 10 99 1 I. HIS APPOINTMENT. § 91. The master-His appointment.- As we have already seen in our introductory sketch of the early history of the court of chancery, formerly masters in chancery were appointed by the king, were members of his household, and held their office during life, and, that they were experienced in the law, of great learning, and "well skilled in the chauncrie writing." Later on they were appointed by the chancellor and were selected from among the clerks, who, from their youth up, had been trained with especial reference to the duties afterward to be required of them. The appointment of masters in chancery by the chancellor is now held to be an inherent power of the court of chancery, and is the universal rule, unless some other method is provided by statute or rule of the court. Their ancient name, masters in chancery - a translation of magistri cancellaria is still retained in the federal courts of this country, as in Florida, Illinois, New Jersey, Maine, Massachusetts, Mississippi, Pennsylvania, South Carolina and Vermont, and in other states unless changed by statute. Under provisions of the various statutes masters in chancery are styled "Commissioners in Chancery" in Virginia and West Virginia; "Master Commissioners" in Indiana, Kentucky and Ohio; "Circuit Court Commissioners" in Michigan; "Clerk and Master" in Tennessee; "Master or Commissioner of the Circuit Court" in Arkansas; "Auditor and Master" in Maryland; "Auditor or Master" in Georgia; "Auditors" in New Hampshire; "Registers in Chancery" in Alabama, and "Referees" in most of the other states; but, by * Ante, § 19 1 Ante, § 27. whatever name this officer may be known, his duties are essentially the same as those of the English master in chancery, and the practice before him is, in the main, the same as that in the master's office as it formerly existed in England. His designation by a different name in no wise affects the duti s of such officer. He is to all intents and purposes a master in -chancery and his duties are to act as a master. No matter by what name he is designated, whether "master, auditor or right hand of the court," if appointed in an equity proceeding, he is in fact a master.? § 92. Same-Federal courts. A master being an officer of the court must be appointed by the court. Under Equity Rule 82 the power of appointing masters is vested in the circuit courts. This rule reads as follows: "The circuit courts may appoint standing masters in chancery in their respective districts, both the judges concurring in the appointment; and they may also appoint a master pro hac vice in any particular case." Under this rule the appointment is complete and effective when it is made and signed by the judges. The law does not require any record to be made of the appointment, nor does any rule of court make the recording of such appointment in a book requisite to its validity. A master thus appointed is an officer of the court, and no one but the court is entitled to hearing upon the question of his selection. This appointment, like the appointment of a clerk of a court commissioner, is to be made by the court, or by the judge or judges, as the case may be, without notice to any one. Under this rule appointments are wholly within the discretion of the circuit courts." The order of appointment is impervious to collateral attack. It can only be attacked by a direct proceeding, and it is not necessary to record the order of appointment in any book." 1 Dean v. Emerson, 102 Mass. 480, 482; Harding v. Handy, 11 Wheat. 103, 126. 2 Kaub v. Ziegler, 11 W. N. C. 433. 'Finance Company v. Warren, 53 U. S App. 472, 82 Fed. 525. Seaman v. Northwestern Mutual Life Ins. Co., 58 U. S. App. 632, 638, 639, citing Polleys v. Black River Improvement Co., 113 U. S. 81; Marbury v. Madison, 1 Cranch, 137, 156, 161. 5 Id. 6 Van Hook v. Pendleton, 2 Blatchf. 85, Fed. Cas. 16,852. 7 Seaman v. Northwest. Mut. Life § 93. Same Alabama.- The constitution of Alabama provides that "registers in chancery shall be appointed by the chancellors of the divisions, and shall hold office during the term of the chancellor making such appointment." The Code, section 653, provides for the appointment of a register in chancery for each district by the chancellor of the division in which such district is situated, such register to hold his of fice during the term of the chancellor making the appointment. § 94. Same Arkansas.-The statutes of Arkansas provide that each clerk of the circuit court, by virtue of his office, shall be master or commissioner of the circuit court with all the powers conferred by law on a master or commissioner in chancery.2 § 95. Same-Georgia.— In Georgia there is no provision made for the appointment of a permanent master, but instead thereof it is provided by the Code, sec. 4581, that the court, upon application of either party, or the judge may upon his own motion, refer any part of the facts in any particular case to an auditor to investigate and report the result to the court; and the Georgia code provides that the "duties heretofore performed by a master in the superior court shall be performed by an auditor," yet the courts frequently speak of an auditor as "master" or "auditor."3 96. Same Illinois. In Illinois it is provided by statute: "That the several circuit courts may appoint in the respective counties in their circuits a master in chancery; the circuit court in Cook county, and the superior court of Cook county, may appoint for their respective courts as many masters in chancery as there are judges thereof." It is also further provided by statute that the tenure of their office "shall be two years, but they may be removed from office by the court for which they are appointed, for good cause shown."♪ Ins. Co., 30 C. C. A. 212, 86 Fed. 493; 552, 555, 9 S. E. 532; Pool v. Gram- 2 Sanders & Hill's Dig. of Statutes, Wright, 73 Ga. 8, 13. $572. 3 Burns v. Beck, 83 Ga. 471, 493, 10 S. E. 121; Martin v. Foley, 82 Ga. § 97. Same-Indiana.- In Indiana it is provided by the code as follows: "The judges of the circuit courts in their respective counties shall appoint at least one master commissioner in each county of his circuit, who shall be a resident of the county seat, and as many more as such judge may deem necessary, who shall be competent attorneys in good standing, and who shall receive their appointment in writing from the judge making the same, and shall continue in office until removed by the court." It is further provided that such master commissioners shall have the power, and discharge the duties which were formerly performed by masters in chancery so far as consistent with existing laws. By this name - master commissioners - they are constantly designated by the courts.3 § 98. Same-Kentucky.- In this state masters in chancery are called "Master Commissioners," the statutory provision for their appointment being as follows: "Each circuit court shall appoint a master commissioner for such court, may remove him and appoint another; but no master commissioner shall continue in office more than four years without a reappointment. Before acting, the master commissioner shall be sworn and execute a bond, with surety, to be approved by the court, for the faithful performance of the duties of his office. The bond shall be entered of record in said court, and shall be renewed once in each year, and oftener if required by the court, and a copy thereof, certified by the clerk, shall be evidence in all proceedings in this state." § 99. Same Maryland.-In Maryland the office of master in chancery at one period existed under the inherent jurisdiction of the court of chancery, independently of statute. Under the constitutional provision that "the judge or judges of any court may appoint such officers for their respective courts as may be necessary," masters in chancery are appointed and known in that state under the name of "auditor and master." 1 Burns' Annotated Stat., § 1462. 2 Burns' Annotated Stat., § 1468. See also Stanton v. The State, 82 Ind. 463, 469. 3 Lewis v. Godman, 129 Ind. 359, 361, 27 N. E. 563; Smith v. Harris, 135 Ind. 621-624, 35 N. E. 984; City of Albany v. The Iron Substructure Co., 141 Ind. 500, 503, 40 N. E. 44. 4 Rev. Stat. 1899, § 392. 5 Townshend v. Duncan, 2 Bland, 45, 60-74, note; Miller, Equity Procedure, sec. 555. |