The foregoing suggestions are made with reference to a case where the order of re-reference does not clearly and specifically set out what is required of the master. There is no reason why an order of re-reference should not clearly and definitely set out the duties required of the master, but, unfortunately, it frequently happens that such orders are so loosely drawn as to render it difficult for the master to determine what duties are required of him. If, upon inspection of the order and of the exceptions, as passed upon by the court, he is unable to determine what is required of him, he should at once apply to the court for more explicit directions. His duties here are the same as upon an original order of reference. Upon an appeal from the master's findings and a re-reference of the cause, it is the duty of the master to follow strictly the directions of the chancellor as set out in the order; and if he fails to observe the terms of such order it is the duty of the court to set aside his acts and doings and send the cause back to him with further directions.

1 Ante, ch. III, div. "Order of Reference," § 153.

Gilbert v. Jarvis, 20 Grant's Ch. R. 478.

§ 340. Master's findings - General principles.— The great weight to be attached to his findings should cause the master to use every effort in his power to arrive at just conclusions as to the facts. His errors in the application of the law will be corrected by the chancellor with a free hand, but from his erroneous conclusions as to the facts, where the evidence is conflicting, there is practically no appeal. As it is well said by the court of chancery of Ontario: "The great weight necessarily attached by the court to the finding of the masters upon facts in which they have had the advantage of being themselves present and hearing the evidence of witnesses should make them anxiously careful to come to a right conclusion. The court must place great faith in their carefulness and judgment; and if they fail in these, the consequence must be, in many cases, a miscarriage of justice."1

After the termination of the argument in a contested cause the master begins what frequently proves to be a laborious task that of forming his conclusions of law and of fact which must precede the making of his report. It is thought a few suggestions upon this subject may be of assistance to the conscientious master in the discharge of this duty. Chancellor Kent's method of preparation for the decision of a cause is an admirable one and commends itself to every one having such a duty to perform. He says that it was his practice to first make himself perfectly and accurately master of the facts;

1 Day v. Brown, 18 Grant's Ch. R. 681, 683

that he did this by abridging the bill, the answers and the depositions, and that, by the time this slow and tedious process was done, he was master of the cause and ready to decide it. He adds that he then saw where justice lay and that the moral sense decided the cause half the time. He then searched the authorities until he exhausted his books, once and awhile finding some technical rule that embarrassed him, but generally finding principles suited to his view of the case.1 Sir Charles Russell, somewhat more in detail, in his method of study adopted practically the same course. His first rule was to do but one thing at a time, whether it was reading a brief or eating oysters, concentrating his whole faculties upon the work before him. Secondly, when dealing with complicated facts, to arrange the narration of events in the order of date a simple rule not always acted upon, but which enables you to unravel the most complicated story, and to see the relation of one set of facts to another set of facts. Thirdly, never to trouble about authorities or case law supposed to bear on the particular question until you have accurately and definitely ascertained the precise facts. This last rule he says he learned from Lord Westbury; that when quite a young man he was, in arguing a cause before that eminent judge, plunging into a citation of authorities, when the judge very good-naturedly pulled him up, saying: "Mr. Russell, don't trouble yourself with the authorities until we have ascertained with precision the facts, and then we shall probably find that a number of the authorities which seem to bear some relation to the case have really nothing important to do with it."2

II. FINDINGS OF FACT.

The

§ 341. Findings of fact- What facts are in issue. master's conclusions of law are necessarily based upon his findings of fact. The facts found must sustain the findings upon the law, and the law of the case must be predicated upon the findings of fact. If the findings of law are unwarranted by the facts found, it is equally erroneous as would be the

1 Green Bag, vol. 9, p. 210.

239 Alb. Law Jour. 304; 1 Elliott's Gen. Prac., p. 2, note.

.

same error committed by a judge in his charge to the jury.' It therefore follows that the master's findings of fact necessarily precede his findings or conclusions of law; and the first thing to be done is to determine what are the facts to be proven, in other words, what facts are in issue? What are the issues made by the pleadings is a question solely of law. In a trial at law it is the duty of the court to state the issues to the jury. The same rule applies in a chancery case. Whether a point is in issue or not must be determined from the pleadings, and must be determined by the master by inspection of same. If he errs in this regard by sending up to the court findings upon points or matters not put in issue by the pleadings, such findings will not vitiate his report if correct as to matters that are in issue; but such erroneous findings should be rejected as surplusage; but, if the court can see that the findings, upon matters that are in issue, are based upon or influenced by erroneous conclusions either of fact or law, upon matters not involved in controversy, the whole report should be set aside, and, on motion, re-referred to the master with further directions.

3

The master should waste no time in making immaterial findings, because if made they can be of no possible benefit to either party. An immaterial finding will be rejected as surplusage by the chancellor, and as a matter of course, an exception based on it must go with it. The rule on this subject is that the master's findings of fact should only be such as are necessary to sustain his conclusions of law. He is not required to find other facts which have no bearing upon the issues involved or are merely of a negative character. It is no part of the master's duty to investigate and report his conclusions upon collateral matters not embraced within the order of reference. It is not necessary that all the allegations of the bill should be proved precisely as charged, but all the law re

1 Buckingham v. Payne, 36 Barb. Ill. 228, 3 N. E. 232; Johnson v. John81, 87. son, 114 Ill. 611, 55 Am. R. 883.

2 Thompson on Trials, sec. 1027; 11 Encyc. of Pl. & Pr., p. 154; I. C. R. R. Co. v. King, 179 Ill. 91, 93, 94.

3 Crone v. Crone, 180 Ill. 599, 605, 54 N. E. 605; Westlake v. Horton, 85

4 McAndrew v. Whitlock, 2 Sweeny (N. Y.), 623, 632; Nelson v. Ingersoll, 27 How. Pr. 1; Buckingham v. Payne, 36 Barb. 81, 87.

5 Fordyce v. Shriver, 115 Ill. 530, 540, 5 N. E. 87.

quires is that enough of the material allegations shall be substantially proved to sustain the decree.1 All mere conclusions of the pleader should be disregarded by the master in determining the relief to be recommended to the court. It often happens that in framing a bill in chancery the pleader, after having correctly stated the actual facts of the case, which is all the law requires, proceeds to make some additional allegations with respect to what the pleader supposes to be the legal effect of those facts, which may be entirely erroneous, yet the complainant is not to be concluded or prejudiced by such unnecessary statements. His rights must depend upon the actual facts stated, and not upon the erroneous conclusions of the pleader as to their legal effect. Where the actual facts are correctly stated in the bill it is the duty of the master to recommend and of the court to render such decree and grant such relief as the law requires from the actual facts stated and proven on the hearing, without regard to what the pleader may have contemplated in framing the bill. In determining what the real issues are submitted to him by the order of the court and the pleadings, it is the duty of the master to con sider the facts alleged and not the deductions or conclusions of the pleader, which may or may not be correct. It is not proper for a party, either in the bill or answer, to state the conclusions of law which he intends to deduce, or has deduced, from the facts he has set out that would be, and is contrary to all the principles of good pleading, but he should merely state the facts intended to be proved, and leave the inferences of law to be drawn by the court or the master.3

§ 342. Burden of proof. In determining a contested issue of fact the next step after clearly ascertaining what the precise issues are, is to find the correct answer to the question: Where is the onus probandi, and what measure of proof is required ?4 In other words, after ascertaining the precise fact or facts which must be established, upon whom rests the burden of proving such fact or facts, and what is the quantum or measure

1 Allen v. Woodruff, 96 Ill. 11, 18.

? Id. Stone v. Moore, 26 Ill. 165, 172; 2 Daniell's Ch. Pr. 815, 816. See this subject fully discussed, ante, ch. V,

div. 2, "Examination of Decree and Pleadings-The Issues," §§ 174-176. 4 Riggs v. Powell, 142 Ill. 453, 458, 32 N. E. 482.