§ 309. Bringing on a reference.— The rules provide that, whenever a reference is made, the party at whose instance or for whose benefit it was directed must bring the same to a hearing on or before the rule-day next succeeding the date of the order for a reference. Otherwise the adverse party may forthwith cause proceedings to be had before the master at the costs of the party who procured the reference. The master need not report evidence unless required by either party. It is the master's duty, as soon as he reasonably can after the matter referred to him is brought before him, to assign a time and place for proceeding, and to give due notice thereof to each of the parties, or their solicitors. Notice may be served by mail or otherwise. It need not be served by the marshal. By the old English practice parties interested in the subject-matter of a reference were brought before the court by the service of a warrant. This was a memorandum, upon a slip of paper entitled in the cause, and signed by the master, appointing a day and hour for all parties concerned to attend him on the matter of the reference. It was in substantially the following form: "By virtue of an order of reference, I do appoint to consider the matters thereby to me referred, on next, at of at which the clock, in the noon, at my Chambers in time and place all parties concerned are to attend. [Signature.] Dated the day of ——,—" It is a better practice, however, for the warrant to contain a statement of the nature of the reference." This warrant is often called a "summons." 10 There was required to be at least one clear day between the day of issuing the warrant and the day appointed by it for the attendance of the parties thereon." The warrant was obtained from the master's clerk by the solicitor applying for it; and the latter underwrote a memorandum expressing its object, and saw that due service of it was made.12 Whenever a docu § 309. Rule 74. 2 Rule 74. 3 Union S. R. v. Mathiesson, 3 Cliff. 146, 149. See Kerosene L. H. Co. v. Fisher, 1 Fed. R. 91. 4 Rule 75. Daniell's Ch. Pr., ch. xxvi. 8 Ibid. 9 Manhattan Co. v. Evertson, 4 Paige (N. Y.), 276. 10 Ibid. 111 Newland's Ch. Pr. 324. See Ber 5 Kerosene L. H. Co. v. Fisher, 1 nie v. Vandever, 16 Ark. 616. Fed. R. 91. 12 Daniell's Ch. Pr., ch. xxvi. 6 Ibid. ment of any kind was left at the master's office by the solicitor of either of the parties, he usually took out a warrant, which he underwrote, "on leaving the," etc. This was termed a "warrant on leaving," and was served in the usual manner, but was considered a mere formal notice, to afford the opposite party an opportunity of obtaining a copy of the document left that he might either admit or contest the circumstances there stated, as he might be advised.14 § 310. Parties entitled to attend a reference before a master. The general rule appears to be, that all parties beneficially interested, either in the estate or in the fund or matter in question, are entitled to attend before the master on all those proceedings which may affect their interests, or increase or diminish their proportion in the fund. The only exception to this rule is said to be the case of a reference to a master of the title to an estate purchased under a decree, when the vendor's solicitor only has the right to appear before the master on the inquiry. An executor, as the legal representative of his testator, is entitled to attend on all proceedings relating to the charges of creditors seeking payment out of the personal estate; but after there has been a report of debts, if all the persons interested in the personal estate are before the court, the executor is only entitled to attend on those proceedings in which he is personally interested as an accounting party. Trustees were formerly not allowed (except in proceedings carried on by themselves) to attend before the master in cases where all the beneficiaries were before the court; but if there were any persons in esse, or who might "come into esse," who might become interested and whose interests were only represented by the trustees, and were not too remote, the trustees were entitled to attend the proceedings affecting those interests. The rule that all parties interested in the result are entitled to attend before the master applies not only to those who are parties to the record, but to those who are "quasi-parties," by having come in under the decree and established a claim." In a suit for the distribution of a fund, or creditors' suit, it is the usual practice for the court to make an order directing that all parties interested present their claims within a time prescribed in the order or by the master; and that the master publish a notice to that effect in certain newspapers. Such an order does not apply to a person who claims the title to specific property, such as a trust fund, of which a receiver has possession. After the expiration of the time thus limited, any creditor or other person interested in the fund may come in and prove his claim at any time before the final distribution of the fund, although an order from the court authorizing such belated proof is usually required. In case a partial but not a complete distribution of the funds has then been made, in bankruptcy at least he can only share in the subsequent dividends. After distribution a person who has thus failed to prove his claim before the master may file a bill against the persons between whom the funds have been distributed to compel them to refund his pro rata share, but he cannot sue the master or receiver.10 A party who has appeared, but allowed a decree to be taken against him by default for want of an answer, is, it seems, entitled to notice of the proceedings against him under the decree in the master's office; " but cannot appear upon such notice before the master without previously obtaining an order for that purpose, which is usually only granted upon terms. The proper course to test a party's right to attend before a master is, after the latter's refusal, to apply to the court by petition for an order permitting the party to attend before him.13 12 § 311. Proceedings before a master in general.— The rules give the master authority to regulate all the proceedings upon a reference to him.' In case of an abuse of his discretion by a master, any party aggrieved may apply to the court for an order, requiring the master to act properly;2 but such • Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. R. 642, 646. 7N. Y. Security & Tr. Co. v. Lombard L. Co., 75 Fed. R. 172. 8 Wilder v. Keeler, 23 Paige (N. Y.), 164. 9 In re Stein, 94 Fed. R. 124. 10 David v. Frowd, 1 M. & K. 200; Gillespie v. Alexander, 3 Russ. 130; Sawyer v. Birchmore, 1 Keen, 391; 12 Heyn v. Heyn, Jacob, 49; Daniell's Ch. Pr., ch. xxvi. 13 Daniell's Ch. Pr., ch. xxvi. 2 Daniell's Ch. Pr., ch. xxvi; Bate applications are not encouraged, and are only granted in extraordinary cases. If any party fail to appear at the appointed time and place, the master may either proceed ex parte, or, in his discretion, may adjourn the proceedings. In the latter case, he should give notice of the adjournment to the party who failed to appear, or to his solicitor. It is the master's duty to proceed in the reference with all reasonable diligence and with the least practicable delay. Otherwise, either party may apply to the court, or a judge thereof, for an order requiring the master to speed the proceedings and to make his report, and to certify to the court or judge the reasons for any delay. There is no necessity for the master's taking any oath, unless the order of reference especially requires him to do so." All parties who are required to account before a master must bring in their accounts in the form of debtor and creditor.10 Should a party fail to do so, the master may make an order requiring him to furnish such an account." The order should not be granted till the first hearing of the reference.12 The order must be served personally with a copy of this order and a notice of the day to which the hearing is adjourned.13 Service may be made by any disinterested person." If the defendant then fails to appear and account, he is in contempt.15 If any of the other parties is dissatisfied with the accounts rendered, he may examine the accounting party either orally or by interrogatories or by deposition, as the master directs.16 By the English practice, the time for a single hearing before a master did not usually exceed one hour, unless the master continued the hearing longer, when an increased fee might, it seems, be charged." It was the duty of the master or his clerk Ref. Co. v. Gillette, 28 Fed. R. 673; Rule 75. See Re Thomas, 35 Fed. R. 337, 340. 3 Lull v. Clark, 20 Fed. R. 454; Wooster v. Gumbirnner, 20 Fed. R. 167; Bate Ref. Co. v. Gillette, 28 Fed. R. 673. 4 Lull v. Clark, 20 Fed. R. 454; Wooster v. Gumbirnner, 20 Fed. R. 167; Bate Ref. Co. v. Gillette, 28 Fed. R. 673. 5 Rule 75. 6 Rule 75. 7 Rule 75. 8 Rule 75. 9 Thompson v. Smith, 2 Bond, 320. 10 Rule 79. 11 Kerosene L. H. Co. v. Fisher, 1 Fed. R. 91. 12 Ibid. 14 Ibid. 15 Ibid. 16 Rule 79. 17 Daniell's Ch. Pr., ch. xxvi. to mark in the master's book the names of the solicitors who attended, and no other attendance than those so marked was allowed in taxing costs.18 In the Southern District of New York, a master is forbidden to adjourn a reference for more than ten days without the written consent of all the parties or the authorization of one of the judges.19 § 312. A state of facts.-By the English practice a party who intended to examine witnesses before a master under a decree was obliged to carry in a state of facts detailing the circumstances which he desired to prove.1 This was also the general form by which the prosecution of every reference to a master was commenced." "A state of facts, as its name imports, is a statement in writing, made by a party who wishes to prosecute or resist any inquiry before a master, of the facts and circumstances upon which he relies, either in support of his own cause, or in contradiction or defeasance of that of his adversary. It is, in effect, the pleading of the party before the master, and is governed by nearly the same rules and principles as pleadings in the court, although, not being signed, nor, in general, prepared by counsel, they are not always so strictly observed. A state of facts, however, must be pertinent to the matter, and must not, any more than any other proceeding in the cause, contain any scandal; and if it is either scandalous or impertinent, the scandalous or impertinent matter may be expunged, in the manner which will be presently pointed out. A state of facts is intituled in the cause, and contains a detail of the facts and circumstances intended to be relied upon by the party: when the party carrying in the state of facts makes any claim upon the fund in court, it is usual to conclude the statement with the particulars of the claim, in the manner of a prayer for relief to the bill, as follows:-'And the said A. B., therefore, claims, etc.;' in such case the proceeding is called 'a state of facts and claims.' When the object of the party is to charge another with the receipt of money, etc., the state of facts concludes with a charge in the following form:-'and the said A. B., therefore, charges, etc.;' in such case the proceeding is called 'a state of facts and charge.' It may be remarked, that a charge is not always preceded by a 18 Daniell's Ch. Pr., ch. xxvi. 19 Rule 115 of U. S. C. C., S. D. N. Y. § 312. Daniell's Ch. Pr., ch. xxvi. 2 Ibid. |