and summaries. Before that is done there should be a decree upon the rights of the parties upon principles of equity, as they may be affected by the facts to be found by the master, and the hearing for that decree should be upon the pleadings, and such evidence as tends to determine the rights of the parties. If that is done in due order the chancellor might find no reference to be necessary. If one be required, it should be made for the satisfaction of the court, and for the ascertainment of such facts and details as may be necessary to apply the principles determined to the exact settlement of the matters in litigation."

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In another case the same court further elucidate the rule as follows: The better practice is for the chancellor first to hear the cause upon the pleadings and such depositions as may enable him to determine the principles to be applied in adjusting the equities of the parties, and then make a reference for such special inquiries, or statements of accounts, as may aid the court in making a definite decree. 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, it is true, 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 decree, leaving for the master only the investigation of such matters of fact as may be necessary to him in making a report, or statement of accounts, in accordance with directions in the decree. By this practice the matters of law which inevitably arise before the master, and which must at last be settled on exceptions, are narrowed down to a few, affecting only details, or items, whilst by the looser practice of a general reference by consent, the master is made a sort of vice-chancellor, and almost all the equities of the case are finally determined on exceptions, after much unnecessary delay and expense. A chancellor, after declining to permit a general reference by consent, may often find, upon hearing, that he does not require the aid of a master at all; or, if he does, the matters to be referred will be few and distinct, involving little delay or expense. A reference

1 Franklin v. Meyer, 36 Ark. 96, 109, 110.

may always be made when found expedient, and the evidence and pleadings already in may be used.1

Chancellor Kent says that "orders of reference should specify the principles on which the accounts are to be taken, or the inquiry proceed, as far as the court shall have decided thereon; and that the examinations before the master should be limited to such matters within the limits of the order as the principles of the decree or order may render necessary."2 Judge Hammond, of the United States district court for the western district of Tennessee, condemns the usual loose methods of references, in the following vigorous terms:

"The practice adopted in this case, of referring the petition to a master before any decree settling the rights of the parties upon the issues made by the pleadings, has resulted in trying intricate questions of law and fact upon exceptions to the master's report, which does nothing more than ascertain the quantum of damages alleged to have been sustained. It is a practice that has been justly condemned as intolerable, is certainly inconvenient and perplexing to the court, and should not be resorted to in the future." 3

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$127. Loose practice condemned - Continued. The evils resulting from a departure from the regular practice are well stated by Chancellor Cooper of Tennessee, as follows: "I have had occasion heretofore to call the attention of the bar to an erroneous practice in this court, the evils of which are strikingly exemplified in this case. Instead of taking proof with a view to a determination of the rights of the parties, and the settlement of the principles upon which the account between them should be taken as a preliminary to the actual taking of the account, the learned counsel have inadvertently agreed upon a general reference settling nothing. The consequence is that both the clerk and master and the chancellor are compelled, if they act at all, to depart from their proper functions and perform, to some extent, the duties of each other.. If you make a general reference to him, without first settling the rights of the parties and giving him spe

1 Hicks v. Hogan, 36 Ark., 298. 301, 302.

2 Remsen v. Remsen, 2 John. Ch. 494, 500.

3 Ward v. P. & M. R. Co., 4 Fed. 862.

cial directions, he must himself judicially determine these rights before he can take any account at all. If he determines them wrong, the whole labor of taking the account is thrown away. Moreover, no matter what report he makes, the chancellor must, in acting upon exceptions, not only look to the facts bearing upon each exception, but settle the law which regulates the rights of the parties. If he fails to do this, an account is taken without any adjudication of rights at all."1

The rule has been recognized also by the supreme court of Illinois. The court, after first laying down the rule that "stating the account is the appropriate work of the master," and that the "court will not undertake to perform it," add that, "the court should first declare, by interlocutory decree, the rights of the parties and the rule to be adopted in stating the account, and then refer the cause to the master in chancery."

From a standard text-writer we quote the following approval of the more correct practice: "The ordinary investigation of facts carried on before the master is simply an arrangement for the sake of convenience. The judge, who hears the cause, has not time to pay his undivided attention to the minutiae of every suit; and is, therefore, content to adopt the opinion of an officer delegated to look into the proofs. With a further view to convenience, and also to the saving of expense, it became allowable, and customary, to defer the proving of various matters until a decree had been obtained, for then the topics essential to the questions which the judge contemplates deciding are pointed out with certainty and precision." 3

$128. Preliminary hearing —Continued — Question may be referred to master. It must not be understood that this preliminary hearing must necessarily be before the court, but, on the contrary, it may be referred to the master and the interlocutory order entered on the coming in of his report. It is the common practice to permit incidental inquiries by a master prior to the principal labor which rests upon the court.*

1 Cobb v. Jameson, 1 Tenn. Ch. 604, 607.

2 Mosier v. Norton, 83 Ill. 519, 525. Gresley, Eq. Evidence, p. 503.

See also Daniel, Ch. Practice, vol. 2, p. 1169, note.

4 Simonds Rolling Mach. Co. v. Hathorn Mfg. Co., 83 Fed. 490; Law

Any issue, whether preliminary and incidental or pertaining to the main issues involved in the litigation, may be referred to a master with authority to take testimony and report thereon to the court, such report, of course, being advisory only and subject to the revision of the chancellor. On the preliminary hearing to determine whether an accounting should be had, the only evidence, as a general rule, material or competent, is such as goes to prove or disprove the complainant's right to an accounting. As this preliminary hearing involves the determination of questions of fact, the interlocutory order should find facts upon which to base the same, not mere inferences.2

§ 129. Preliminary hearing-Continued - When unnecessary. Cases where the court may order a reference before entering an interlocutory decree are exceptions to the general rule.3 A defendant may waive the necessity of such interlocutory decree. Under the old English practice, by consent of parties, accounts might be examined into before the hearing, but Harrison says: "The common method now is, not to examine into a matter of account till after the hearing."5 Lord Bacon's Order No. 50 provided that in cases of accounting the cause should first come to a hearing, that they may receive some direction, except both parties before a hearing consent to a reference to expedite the hearing. It has been held that admissions in the pleadings may dispense with the necessity for an interlocutory decree, finding a reference to be necessary and directing the method of stating the account.?

§ 130. When reference may be made at once. Where a party pleads another suit pending for same cause of action, he must, at the filing of such plea, obtain an order of reference to a master to examine and report whether the plea be true.

rence v. Dana, 4 Cliff. 1, 87, Fed. Cas. No. 8,136; Field v. Holland, 6 Cranch (U.S.), 8, 22.

1Standish v. Babcock, 48 N. J. Eq. 386, 22 Atl. 734; Hudson v. Trenton Locomotive, etc. Co., 16 N. J. Eq. 475. 2 Kahn v. Smelting Co., 102 U. S. 641, 26 L. Ed. 266.

3 Franklin v. Meyer, 36 Ark. 96, 109. 4 Carter v. Alston, 3 N. C. (2 Hayw.)

237; Dozier v. Sprouse, 54 N. C. (1 Jones Eq.) 152; Lattimore v. Dixon, 65 N. C. 664; Protchett v. Schaefer, 11 Phila. 166.

52 Harr. Ch. Prac. 94.

6 Beames' Orders in Chy., pp. 23, 24. 7 Burns v. Rosenstein, 135 U. S. 449. See also Scott v. Pinkerton, 3 Edw. Ch. 70.

81 Barb. Ch. Pr. 125, and cases cited.

The case will then be heard upon plea and the master's report, and upon these the court will decide as to the validity of the plea. Upon the filing of such plea it should be immediately referred to the master without being set down to be argued.2 Where a plea of the defendant sets up the pendency of another suit between the same parties for the same cause of action, it is not the usual practice to set the matter down for argument, the practice in such cases being to move a reference to a master to ascertain the truth of the matters stated in the plea. This practice is based on the theory that a plea setting up another suit between the same parties, for the same cause of action, pending in the same court, was obviously good in substance, and that by setting the plea down for argument, the only question that can be raised is whether the plea is defective in form. But this practice does not apply to a case where the plea sets up the pendency of another suit in another jurisdiction. In such a case the complainant has the right to have the plea set down for argument to determine whether the matters set out in the plea, if true, operate to prevent the court from entertaining further jurisdiction.*

Upon a motion to put the complainant to his election to proceed either at law or in equity, where the two courts have concurrent jurisdiction, the question arises whether the suits are for the same matter. If upon such application it appears that they are not for the same matter the court does not refer it to the master, but if the court has any difficulty in determining whether they are for the same matter or not, a reference is directed, and all proceedings stayed until he reports thereon."

$131. When too late to order a reference. The order of reference should be made before any action whatever is taken by the master, because after such action is taken an order

Hart v. Philips, 9 Paige, 293. For form of plea see 2 Barb. Ch. Pr. 408; Beames' Pleas in Equity, 134, 330.

Daniel v. Mitchel, 1 Ver. 484; Baker v. Bird, 2 Ves. 672; Wild v. Hudson, 2 Ves. & Bea. 105, 110.

3 Daniell, Ch. PL. & Pr. (5th ed.),

pp. 637, 692; Zimmerman v. So Relle, 80 Fed. R. 417, 421.

4 Zimmerman v. So Relle, supra. In this case the defendant set up the pendency of a suit in the state court for the same subject-matter, and the court held as stated in the text.

Mills v. Fry, 3 Ves. & B. 9.

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