case he is termed "the court's representative," appointed with special reference to his fitness to perform the duties imposed upon him.1 He is an officer of the court, acts directly under its eye, and takes no step without its instruction or approval. He makes reports from time to time, and receives the direction of the court thereupon.2 In their various efforts to define the character of masters in chancery, as to whether they are judicial or ministerial officers, the courts differ widely, owing, doubtless, to the different standpoints from which the subject is viewed. One court speaks of the master as a judicial officer, acting as the representative and substitute for the court which appointed him.3 "The master is a judicial officer." But it is generally said the master "is but the ministerial officer of the court," and as such his findings and recommendations have no force or effect other than to aid the court in the performance of judicial duties. They are only advisory. The confirmation and approval of his report is merely interlocutory and constitutes no decree." But one court has gone so far as to speak of the master in chancery as both a ministerial and judicial officer, and although "in most instances he acts as a judge, yet it is always with an appeal to the court." 8 The master, under an order of court, may hear evidence, ascertain the facts proven and report them to the court for approval, but, before such findings of the master become binding, they must be approved by the court. The master is a ministerial and not a judicial officer. Hence, an order of court directing the master to ascertain a fact and then proceed to execute his finding as if it were an order of court is erroneous. The duties of a and note 5; Lehigh Coal, etc. v. Central R. Co., 35 N. J. Eq. 426, 427. 1 Hoe et al. v. Scott (U. S. Cir. Ct. D. N. Y.), 87 Fed. R. 220. 2 Wister v. Foulke, 6 Phil. 26. Bate Refrigerating Co. v. Gillette (U.S. Cir. Ct. D. N. J.), 28 Fed. 673. Sculthorpe v. Burn, 12 Grant's Ch. R. 427, 428. 5 Chicago Bill Posting Co. v. Schuster, 88 Ill. App. 513; Hards v. Burton, 79 Ill. 504, 509. ster, 88 Ill. App. 513; Fairbury, etc. v. Holly, 169 III. 1, 12, 48 N. E. 149; Brueggestradt v. Ludwig, 82 Ill. App. 451, 184 Ill. 24, 41, 56 N. E. 419; Ennesser v. Hudek, 169 Ill. 494, 48 N. E. 673. 7 Chicago Bill Posting Co. v. Schuster, 88 Ill. App. 513; Levy v. Berkowsky, 50 Ill. App. 537. 8 Fenwicke v. Gibbs, 2 Desauss. 629, 635. 9 Boston v. Nichols, 47 Ill. 353, 359. Chicago Bill Posting Co. v. Schu- See also Wilhite v. Pearce, 47 Ill. 413. master in chancery are strictly of a ministerial character. The court has no authority to invest him with power in the nature of judicial duties. Yet, while this is true, some of the duties imposed upon him are quasi-judicial in their character; for example, under a proper order of the court, he hears the testimony, makes rulings upon the admission or rejection of evidence, and, after the conclusion of the evidence, hears the arguments of counsel and determines what facts are proven and what the law is, applicable to the facts so found; yet, after all this, he may not enter a decree or an order, but can only report his conclusions to the court for approval or disapproval. He is only the assistant or adviser of the chancellor, who alone has the power under the law to enter judgments and decrees, and any attempt to confer this latter power upon the master is error and ground for reversal. Thus, in an Illinois case, the court attempted to confer judicial authority upon the master in a foreclosure proceeding, by directing him to ascertain the amount due and then to proceed to sell the premises, without reporting his findings to the court and having a decree of sale entered. Speaking of the propriety of this order Mr. Justice Walker, speaking for the court, says: "This was manifest error. It was, in effect, allowing the master in chancery to find the amount due, and to, in effect, decree its sale, and then proceed to execute his decree. The master has no such power. He is but the ministerial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions. His powers are delegated to him by the court, and the court can confer on him no judicial powers. Those powers are vested in the judiciary, and cannot be delegated to any but persons belonging to that department of government. All the acts of the master become binding only by being approved and adopted by the court. Hence the court alone can find, adjudge and decree so as to bind the parties and the subject matter." 2 1 De Leuw et al. v. Neely, 71 Ill. 473, 474; Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458. 11 2 Hards v. Burton, 79 Ill. 504, 509. CHAPTER III. REFERENCE TO MASTER. L DEFINITION AND OBJECT OF A REFERENCE. III. AT WHAT TIME A REFERENCE WILL BE MADE ... V. WHEN A REFERENCE IS NECESSARY I. DEFINITION AND OBJECT OF A REFERENCE. § 116-117 118-121 122-131 132-138 139-140 141-142 143-146 147-149 § 116. Reference - Definition and object.-A reference is an order of the court, whereby divers matters, as exceptions, contempts, irregularities, matters of account, etc., are referred to a master to examine, and make a report to the court, to the end that the court may make an order absolute, and determine such matters. A reference is an "order of court, whereby exceptions, contempts, irregularities, matters of account, and such like, are referred to a master to examine, and make a report of to the court, or whereby he is finally to determine or settle some matter." 2 In a suit in equity, unlike an action at law, matters of fact as well as questions of law are by the constitution, and immemorial practice of the court, determined and adjudicated by it. It is often impracticable for the chancellor to investigate the matters of fact arising in a cause, and take the testimony to that end, to state and settle the necessary accounts, which are often very complicated, to ascertain and classify the liens upon the property, and to perform other functions of a similar nature necessary to the proper adjudication of the matters of law and fact arising in the varied and important litigation which pertains to its jurisdiction. Commissioners in chancery are appointed to assist the chancellor, and to relieve him in a 12 Harr. Ch. Pr. (Ed. 1807), 93. 2 Pr. Reg. Ch. 362. large measure of any other duties incidental to the progress and determination of the cause. For this reason they have been aptly termed the "arms of the court."1 $117. Reference - Definition and object-Continued.This extra-judicial mode of investigation is of very great advantage, by relieving the court at its regular term from the performance of burdensome duties and thus enabling it to exercise its regular jurisdiction in a much more beneficial manner. The object of a reference to a master is for the convenience of the court; to ascertain disputed facts, and to make computations which would take up too much of the time of the court.3 By reason of the large amount of equity business, original and appellate, it would simply be impossible for the court to examine every case ab ovo and in detail; but the court must be brought directly to the points of the contest. This can be done only by a preliminary hearing before a competent master, who can take time to examine the case well, and report upon it intelligently and accurately. The effect of this is to eliminate from the controversy that which is undisputed, and to develop the true points of contest. The hearing before the master is not strictly a trial which judicially determines the rights and liabilities of the parties, with a bare appeal to the court, but is a process to develop them for the consideration of the court; the party dissenting from the master's views bringing the real points of the contest before the court by exceptions." One of the principal objects in referring cases to the master for hearing is to relieve the court from the labor and time of hearing the case either ore tenus or on depositions, and to have the assistance of the analysis and substance of the testimony before the master, with proper reference to the testimony of the witnesses, and the page of the testimony where it can be found, to enable the court the easier to determine whether the conclusion drawn by the master from the facts is supported by the evidence." 1 Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458. 2McDougald v. Dougherty, 11 Ga. 570, 587. Taylor v. Read, 4 Paige, 561, 567. 138. Phillips's Appeal, 68 Pa. St. 130, Kansas Loan & Trust Co. v. Electric Ry. Co., 108 Fed. 702, 704. It is a "well-established principle, that the courts of the United States, in the exercise of their chancery powers, possess an inherent authority, in proper cases, to order a reference to a master."1 Of the origin of the practice of referring matters to the masters for decision, the author of Choyce Cases in Chancery, writing in 1652, says: "The Lord Chancellour taking advantage of their leisure and opportunity doth many times of late refer matters which have depended in that court and are ready for hearing unto their examination; the which according to their examination and certificate are decreed;" but the people did not take kindly to this new departure, for he adds that "the people do complain much of this new employment of them,” and that "it is one (amongst others) of the greatest honors of the Common Laws, that causes are never adjudged or resolved in tenebris, or sub silentio suppressis rationibus, but in open court, and there upon solemn and deliberate arguments."2 II. WHAT WILL BE REFERRED. § 118. What matters will be referred.- Judge Staples of Virginia, in commenting upon the duties of the commissioner in chancery, says: "That the office of commissioner in chancery is one of the most important known in the administration of justice will be universally conceded. His duties are of a grave and responsible nature; he is the assistant to the chancellor. There is no question of law or equity, or of disputed fact, which he may not have to decide, or respecting which he may not be called upon to report his opinion to the court." 3 "The line between the matters which the chancellor may determine in the first instance, and those which for convenience and dispatch of business are more properly referable to a master, cannot be drawn with precision; but it may serve as a guide to say that all matters of law should, as far as possible, be first determined by the court and fixed by the decree; leaving for the master only the investigation of such matters of fact as may be necessary to him in making a report or state 1 Thompson v. Smith, 2 Bond, 320, 23 Fed. Cas. 1,092. 2 Choyce Cas. in Ch., p. 70. 3 Bowers' Adm'r v. Bowers, 29 Grat. 697, 700; McClay v. Norris, 4 Gilm. 370, 386; 2 Barbour, Ch. Pr. 468. |