In

sation of masters is largely a matter of local regulation. many, if not all, jurisdictions, statutory provisions, regulating such compensation, exist.

$ 583. Power to order reference.

As a general rule, a court of equity may hear the cause without reference to a master.11 It is a matter of discretion with the chancellor whether he will order a reference.12 Where an account is to be taken, it is held to be the better practice to have a hearing for the determination of the general rights of the parties, before making the reference, and then to direct the master specially as to the matters referred.13 It is not erroneous, though it is bad practice, for the chancellor to take an account himself, except in simple and obvious cases, in order to save expense to litigants. In cases of a complicated character, involving matters of account between the parties, justice cannot well be done without a reference, and the chancellor ought to

11 Central Trust Co. of New York v. Madden, 25 U. S. App. 430, 70 Fed. 451; Goodrich v. Parker, 1 Minn. 195 (Gil. 169); Carter v. Lewis, 29 Ill. 500; May v. May, 19 Fla. 373.

12 Buchanan v. Alwell, 8 Humph. (Tenn.) 516; Com. v. Archbald, 195 Pa. 317, 46 Atl. 5; Glover v. Jones, 95 Me. 303, 49 Atl. 1104.

13 Franklin v. Meyer, 36 Ark. 96. In West Virginia it is held that, if the court overrules a demurrer to a bill, and gives the defendant a certain time in which to answer the bill, it cannot properly order a reference of the cause to a commissioner to ascertain the amount of the complainant's demand till the time has elapsed which was given the defendant to answer, nor can it then order such reference, if the answer is filed, and denies all the facts on which the complainant's claim is based. If such answer be filed, no such reference can properly be made till the complainant, by evidence, has proven that he has a demand against the defendant. Goff v. McBee, 47 W. Va. 153, 34 S. E. 745; Neely v. Jones, 16 W. Va. 626. See Columbian Equipment Co. v. Mercantile Trust & Deposit Co., 113 Fed. 23. Where an account is to be taken of the rents and profits of land in the possession of a mortgagee, and the taxes paid and repairs made by him, the court, after declaring, by an interlocutory decree, the rights of the parties and the rule to be adopted in stating the account, should then refer the case to a master. Mosier v. Norton, 83 Ill. 519. See, also, McGillis v. Hogan, 190 Ill. 176, 60 N. E. 91.

refer the subject to a master, to take and state the account. The practice of finally hearing, without the intervention of a master and the aid of his report, cases involving the settlement of accounts, is unsafe to litigants, and burdensome to the court, and should not be followed.14 Even consent of counsel cannot be allowed to impose on the court the labor of making up complicated accounts.15 But matters of mere computation, or of ready ascertainment, which can be made by the chancellor without interfering with his public duties, are not required to be referred to a master.16 It is not within the general province of a master to pass upon all the issues in a cause, nor should the court refer the entire decision of the case to him, without the consent of the parties.17 Reference of the whole cause to a master has become, in later years, a matter of more common occurrence than formerly, though it has always been within the power of the court of chancery, with the consent of parties, to order such a reference.18

§ 584. Order of reference.

An order of reference should be entered referring the cause

14 May v. May, 19 Fla. 373; Bryan v. Morgan, 35 Ark. 113; Bolton v. Flournoy, R. M. Charlt. (Ga.) 125; Bressler v. McCune, 56 Ill. 475; Quayle v. Guild, 83 Ill. 553; Roberts' Ex'r v. Dale, 7 B. Mon. (Ky.) 199; Doe d. McCall v. Carpenter, 18 How. (U. S.) 297. See Quayle v. Guild, 83 Ill. 553, reversing a decree, because in such a case a reference was not had; Moss v. McCall, 75 Ill. 190; Moffett v. Hanner, 154 Ill. 649, 39 N. E. 474.

15 French v. Gibbs, 105 Ill. 523.

16 Ballard v. Lippman, 32 Fla. 481, 14 So. 154. It is improper to order an account merely to establish by testimony the allegations of the bill. Lee County Justices v. Fulkerson, 21 Grat. (Va.) 182; Ammons v. South Penn Oil Co., 47 W. Va. 610, 35 S. E. 1004; Tilden v. Maslin, 5 W. Va. 377. In South Carolina it is held to be discretionary with the court whether it will order a reference to take testimony pending a motion for the submission of the issues to a jury under a rule of court. Barnwell v. Marion, 58 S. C. 459, 36 S. E. 818.

17 Early Times Dist. Co. v. Zeiger (N. M.) 66 Pac. 532; Kimberly v. Arms, 129 U. S. 512.

18 Kimberly v. Arms, 129 U. S. 512; Haggett v. Welsh, 1 Sim. 134; Dowse v. Coxe, 3 Bing. 20; Prior v. Hembrow, 8 Mees. & W. 873.

to the master. It is erroneous to take testimony before a master without an order of reference, and such error cannot be cured by subsequently entering an order of reference nunc pro tunc.19 The court may, of its own motion, without the consent of the parties, order a reference to a master.20 It may usually do so on the application of either party.

An order of reference for an account before a master should not be more extensive than the allegations and proofs.21 It is said that orders of reference to a master should specify the principles on which accounts are to be taken, or the inquiry to proceed, so far as the court shall have decided thereon, and the examinations before the master should be limited to such matters within the order as the principles of the decree or order may render necessary.22 In other jurisdictions, it is said to be not usual to refer accounts with instructions.28 A decree directing a reference for an accounting should not restrict the witnesses to the complainant and defendant, to the exclusion of those defendants who have suffered the bill to be taken as confessed. Liberty should be given such defendants to produce evidence.24 Where the master fails to comply with the order of reference, a special application for an order to have the defect repaired is the proper proceeding.2

25

§ 585. Forms of order of reference-Generally.

[Title of court and cause.]

This cause coming on for hearing upon the motion of A. B., solicitor for the complainant, and it appearing that due notice of said motion has been given to C. D., solicitor for the said defendant, and the said

19 Hawley v. Simons, 157 Ill. 218, 41 N. E. 616; Preston v. Hodgen, 50 Ill. 56. See Hess v. Voss, 52 Ill. 472.

20 Smith v. Rowe, 4 Cal. 6.

21 Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587; Ruffner v. Hewitt, 7 W. Va. 608.

22 Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495.

23 Clements v. Pearson, 39 N. C. 257.

24 Damouth v. Klock, 29 Mich. 289.

25 Deimel v. Parker, 59 Ill. App. 426; Tyler v. Simmons, 6 Paige (N. Y.) 127.

complainant and defendant being present in open court, and the court being fully advised in the premises,

It is ordered that said cause be and the same is hereby referred to G. B., Esq., one of the masters in chancery of this court, to take proof of all the material allegations in the said bill contained, and report the same to this court, with his opinion on the law and the evidence, with all convenient speed.

§ 586. Another form.

[Title of court and cause.]

This cause coming on to be heard this day, on motion of A. B.. solicitor for the complainant, that the said cause be referred to a master, and it appearing that the default of all the defendants has been duly entered herein, and the court being fully advised in the premises,

It is ordered that this cause be and it is hereby referred to G. B., one of the masters in chancery of this court, to take proof of the material issues raised by the pleadings in said cause, and compute the amount due complainant, and report his conclusions of law and fact, as well as the evidence taken by him, to the court, with all convenient speed.

§ 587. Form of order of reference as to alimony.

[Title of court and cause.]

Upon reading and filing the petition of the above-named complainant, duly verified, and the several affidavits thereto attached, and on hearing A. B., solicitor for the complainant, and C. D., solicitor for the defendant,

It is ordered that the said defendant pay to the said complainant, or her solicitor, the sum of $100, in and towards defraying the costs and expenses of this suit, and that execution may issue therefor.

It is further ordered that this cause be referred to G. B., one of the masters in chancery of this court, to examine and report what would be a reasonable sum to be allowed for the support of the said complainant during this suit [and, if children are with her, add, “and of the children of the marriage now in her custody and charge"]. It is further ordered that said master report as to the times and manner in which the said sums should be paid to the complainant.

§ 588. Form of order of reference to state an account. [Title of court and cause.]

This cause coming on this day to be heard upon the bill of com plaint, the answer of the defendant to said bill, the replication of the

lainant thereto, and the testimony heretofore taken and reported

by G. B., one of the masters in chancery of this court, and the court having heard the arguments of counsel for the respective parties, who are present in court by their respective solicitors, and being fully advised in the premises, finds: [Here insert the finding of the court as parties, and the rule to be adopted in

to the facts, the rights of the stating the account.]

It is therefore ordered and adjudged that this cause be again referred to the said G. B., one of the masters in chancery of this court, to take the books of account, and all papers referred to in the pleadings, and the report herein heretofore filed, and state the account be tween said parties, taking and reporting such testimony, if any, as may be further offered by either of the parties to the suit, outside of the said books of account, documents, etc., and that the said master first give notice to the said parties respectively of the time and place when and where said account will be taken, and further proof in relation thereto will be taken, if any, and report the said statement of account to the court as soon as practicable.26

§ 589. Changing master.

After a cause has been referred to a master, it cannot be withdrawn from that master without an order of court. Such an order will not be made unless on special circumstances, such as the incapacity of the master, from illness, to attend to the business, which, to justify such a removal, must be shown to be of a very urgent nature.27 The court may, in its discretion, change a reference from one master to another.28

$590. Objections to reference.

Objection to a reference to a particular master must be made before the hearing by the master. A party cannot lie by and take the chance of a report in his favor, and then avail himself of the objection when an adverse report is made.29 Objection that a reference was prematurely made is waived where the par

26 For another form of order of reference, see Bolton v. Flournoy, R. M. Charlt. (Ga.) 125.

27 1 Barbour, Ch. Pr. 471; Anonymous, 9 Ves. 341; Gibbons' Appeal, 104 Pa. 587.

28 Cook v. Houston County Com'rs, 62 Ga. 223.

29 Johnson v. Swart, 11 Paige (N. Y.) 385; Dewing v. Hutton, 48 W. Va. 576, 37 S. E. 670.