ginning of 1818, 500l. was due to him, and, notwithstanding his having been advised by counsel that no security would be effectual, he takes a warrant of attorney from an infant to secure that sum. The plaintiff, therefore, is entitled to be let into the account as prayed for by his bill, both on the ground of these suspicious circumstances, and still more upon the general

principle, that Harvey had voluntarily placed himself in a situation, which gave him such an influence over the mind of the infant, that it is not to be permitted that he should call on this young man, as soon as he attains his full age, to sign an instrument, without the intervention of the advice or aid of a third person, and by that instrument to exclude him from all investigation of the accounts.

The counsel for the defendant have said, that Harvey destroyed or delivered up the vouchers, when the memorandum was signed, and that it is therefore unjust that he should be driven to an account now, when he no longer has the means of establishing his payments: even if he were left destitute of proof, the principle could not be admitted; for the effect of it would be to permit a party to defeat a fundamental objection to his own proceedings; to escape out of the rule of law by the destruction of documents. It is not true, however, that Harvey is placed in such a situation; he has still the means of meeting the account for, though the vouchers should be gone, he can examine his witnesses, and show what sums were advanced to the plaintiff, at what times, in what manner, and by whose hands.

I might have doubted, whether after a verdict at law, the court could entertain a bill for an account: but I am precluded from considering that point: for after the verdict was obtained, the Lord Chancellor granted an injunction to restrain execution. That injunction implied, that an account was to be taken between the parties, if at the hearing it should appear, upon the merits, and independently of the verdict, that the plaintiff was entitled in equity to an account.

As the plaintiff has made the alleged insertion of the sum in the memorandum by Harvey, an important part of his case, and has failed totally in the proof of that

charge, I shall give no costs up to the hearing.

The decree directed a general account between the parties, and the continuance of the injunction against suing out execution upon the verdict.

decree, empowering a party to examine as No special direction will be given in a to particular points before the master, witnesses who have been examined in the cause; such a permission can be obtained only by a distinct application, subsequent to the decree.

In this cause, Mr. Wakefield, at the hearing, applied for the insertion in the decree of a special direction, that the plaintiff might be at liberty to examine, as to particular payments, some of the witnesses who had been examined upon other points as witnesses in the cause.

Vice Chancellor.-That cannot be done in the decree; it must be the subject of a particular application.

It is the habit of the court, to direct, not a reference, but an issue, wherever a ques- · tion of legitimacy is raised.

Where defendants residing in Ireland, have filed their bill in England, as being some of the next of kin, and a defendant insists on their illegitimacy, the court will direct an issue to be tried in an English county, though the plaintiffs are poor, and their witnesses are resident in Ireland.

The bill called for an account of the personal estate of a person deceased, and purported to be filed by some of his next of kin, against others of the next of kin, among whom was his administratrix. The defendants questioned the title of the plaintiffs to sustain the suit by reason of their alleged illegitimacy; and an issue had been directed to try this point As,

however, the issue was to be tried in Ireland, it had been necessary to file a bill in the Irish Court of Chancery, stating the proceedings here, and praying for the requsite directions. These directions had been obtained, the issue had been tried in Ireland, and a verdict had been given in favour of the plaintiffs.

It was subsequently discovered, that a Mr. and Mrs. Conroy were unquestionably entitled to part of the fund, as being of the next of kin of the deceased: and, as they were not parties to the suit, when the issue was directed and tried, they of course were not bound by the result. They were made parties; and they again raised the question of the plaintiff's title by putting in a plea of their illegitimacy. Upon ar gument, the plea was found defective in form, and liberty was given to amend it. Instead, however, of amending, Mr. and Mrs. Conroy abandoned their plea, and put in an answer to the bill, in which they insisted, that the plaintiffs were illegitimate, and had no right to call for an account of the estate of the deceased intestate.

At the hearing, a decree was made, ordering a reference to the master, to inquire who were the next of kin of the deceased intestate.

The plaintiffs, it must be observed, had not gone into evidence, in the cause, to prove their alleged title as next of kin.

A petition of re-hearing had been presented on the part of some of the defendants and upon that petition, the cause came on in the sittings after Trinity term.

Mr. Tinney, on behalf of Mr. and Mrs. Conroy, insisted, that the court had not jurisdiction to order a reference to the master upon such a point; that the question of legitimacy went to the entire title of the plaintiffs to maintain the suit, and was not a matter of subordinate or collateral inquiry; that the defendants had a right, either to have the question determined by the court on the evidence, or to have an issue directed to be tried, where alone the court, to whose aid the plaintiffs had applied, had authority to direct it to be tried, namely, in an English county; that, if the defendants had pleaded, instead of answering, the court could not have directed an inquiry, but issue must have been taken on the plea; that the course, which

the existing decree adopted, was full of inconveniences; for, if the plaintiffs should be found to be illegitimate, all the other inquiries, with respect to who were next of kin, would be useless, because they would be made in a cause, where there was no plaintiff entitled to maintain the suit.

Vice Chancellor.-When a plea is put in, the court has no discretion, and cannot direct a reference: but because it must follow a particular course, where it has no discretion, there is no reason why it should not, where it is at li berty to act according to its discretion, adopt the course which is most convenient for all parties. Here, there must be inconvenience, whatever be the mode of pro ceeding that is adopted. The objections to a reference have been stated; but on the other hand, suppose an issue to he directed, the result of which is in favour of the legitimacy of the plaintiffs, and that it turns out that the present defendants are not the next of kin, or the sole next of kin, the issue would in that case be lost: it would not bind the persons, who, being really the next of kin, were not parties to it. There is likewise this further difficulty, that the witnesses are resident in Ireland; so that, if a trial in an English county be ordered, we have no means of compelling their attendance. If it is said, that they can be examined under a commission, the reply is, that there the great advantage of an issue, that of viva voce examination is lost, and the trial gives no better means of investigating the truth, than may be had on an inquiry before the master. I directed a reference, because, under the peculiar circumstances of this case, it seemed the most eligible course. That the court has not jurisdiction to order a reference upon such a point, is doctrine quite new to me, and contrary to what I have always understood to be the every day practice of courts of equity. If, however, it is wished to maintain that argument, let the petition of re-hearing stand over, till Michaelmas Term.

Nov. 25th.-The petition of re-hearing came on again.

Mr. Horne and Mr. Garrett appeared for the plaintiffs;

Mr. Heald and Mr. Tinney, for Mr. and Mrs. Conroy ;

Mr. Bell and Mr. Whitmarsh, for the administratrix, and the other defendants, who were parties to the previous issue.

Mr. Heald, argued, that, where the title of the plaintiff to maintain the suit was questioned, it was incumbent on him to produce some evidence of the facts constituting that title, so as (if he did not coinpletely make out his right to sue) at least to lay a ground for further inquiry. If a person filed a bill as heir at law against a person claiming to be devisee, and the latter should insist that the former was not in truth heir, the proper course was, for the plaintiff to prove that he was heir, and for the defendant to prove the execution of the will; and then, the court would direct any issue that might be necessary to determine the validity of the devise. But if the plaintiff produced no proof in the cause that he really was clothed with that character of heir, which the other party denied to him, would not his bill be dismissed at the hearing? Could it be contended, that any person might file a bill, saying that he was heir, and then, though his heirship was altogether denied, and not a title of evidence produced to make it out, claim an issue or a reference, when the cause came to be heard? If this was the practice of the court with respect to heirs, next of kin could not claim more favour: they, too, ought to enter into some proof of their title, and as these plaintiffs had not done so, their bill ought to be dismissed.*

If the court were unwilling to dismiss the bill, yet it was certainly its habit to send questions of legitimacy to be tried, not in the master's office, but before a jury.

Further, if a reference were to be directed, it ought to be limited to the single point, whether the plaintiffs were or were not of the next of kin of the deceased intestate. If the report were in the negative, then the suit was at an end; if it were in

The court came to no decision upon this part of the argument. Though put strongly by the counsel, it was not insisted on finally as a ground of decision. Probably it was thought that, regard being had to the previous proceedings, in which a decree had been made, and an issue tried between the plaintiffs and some of the defendants, the general principle, even though sound, could not be applied to this particular case.

the affirmative, then there would be another reference. There ought of necessity to be two steps in the inquiry; for if the whole question of who were next of kin, were gone into at once, and part of the finding should be against the pretended title of the plaintiffs, all the expense incurred in the other parts of the investigation would be thrown away.

Mr. Tinney, on the same side, argued, that the court had here no jurisdiction to direct such a reference as had been made. When the right of the plaintiff to sustain the suit was called in question by the defendant, the court, if it did not determine the matter itself, sent it to be tried by a jury. The title of a rector, an heir, or a devisee, the existence or non-existence of an agreement of which a specific performance is sought, these things were never sent to the master, unless perhaps by the consent of the parties. The office of the master was not a fit tribunal for determining the point, on which the whole cause hinged. The masters were originally merely ministerial authorities, for the purpose of assisting the judge in matters of account, and other inferior and collateral matters. Attempts had been made at an early period to extend their province, but the orders both of Lord Bacon and Lord Coventry, sought to check this abuse. "No reference," says the 47th order of the former, "shall be made to any masters of the court, or any other commissioners, to hear and determine, were the case is gone so far as to the examination of witnesses, except it be in special cases of parties near in blood, or of extreme poverty, or by consent, and general reference of the state of the cause, except it be by consent of the parties, to be sparingly granted.' *The 21st of Lord Coventry's orders is.—“ No references are to be made either to masters or others, (unless it be by assent on both sides) to hear and determine the cause upon all the proofs or otherwise. But when the court hath heard it, and reduced it to particular points, especially if those points

have relation to account or matter of that nature, the court may fitly leave such to be reduced to certainty by a master." ‡ The doctrine contended for was recognized

Beames' orders, p. 23. Ibid. p. 81.

by Lord Eldon in the case of Lechmere v. Brasier. There a bill was filed by creditors to have the real estates of a deceased intestate sold, on the ground that he was a trader, subject to the bankrupt laws at the time of his death. Though that allegation was not proved in the cause, there was a decree for a sale; and a purchaser under the decree having raised the objection, the decree was re-heard, and was varied by directing a reference to the master to inquire, whether the intestate, at the time of his death, was a trader within the intent of the bankrupt laws. But the Lord Chancellor held, that the second decree was wrong in directing the reference. A greater number of direct authorities upon the subject were not to be found, only because the court never attempted to assume such a jurisdiction.

Vice Chancellor.-The proposition now stated is, that this court has no jurisdiction to send an inquiry to the master on a doubtful fact, if the whole title of the plaintiff to sustain the suit depends on that fact, but that, if not determined here, it must of necessity be sent to a jury. My experience is the other way; nor did I ever meet with any case, in which such a proposition was stated or even hinted at. Does not the court frequently, upon the masters' report, dismiss the bill on the ground that the plaintiff has been found to have no right to prosecute the suit. The title of the plaintiff frequently depends on the fact of partnership or no partnership: what is more common than to see the investigation of that matter referred to the master? The case of Lechmere v. Brasier, contains not the least allusion to the proposition, which it has been cited to support. There the Lord Chancellor's opinion was, that the question whether a man was or was not a trader, was one which ought to have been sent to a jury, and not to a master; and he refused to bind a purchaser, because that fact had not been established by a verdict. But there is not, in what he says, the slightest intimation of such a general proposition as that which has been contended for.

My opinion is, that the court has full jurisdiction to direct a reference as to any

† 2 Jac. v. Walker, 287.

fact, even if the fact should constitute the whole of the plaintiff's title to sustain the suit, if in other respects, that course shall seem expedient; and this opinion is confirmed by the whole current of authorities. It is said, that there is no express authority on the point how could it be otherwise, when this is the first time that the doubt has been raised? There never is authority to support that which was never before questioned. If, at the hearing, a fact is left questionable upon the evidence, the court may send it for further investigation, either to a jury or to the master: and it will prefer the one mode of inquiry or the other, according as the one or the other is best fitted to the nature of the case. Some facts are of such a kind, that they will always be sent to a jury, because their náture is such, that the inquiry before a jury must always be more satisfactory for the purposes of justice than the other mode of investigation. But in these cases the court adopts that course, only because it thinks it a more convenient mode of proceeding, and not on account of the infirmity of its own jurisdiction. The question of legitimacy is one of those, which, for obvious reasons, it is proper to submit to a jury; and I am therefore willing, if the defendants wish it, to adopt that course here.

The

However, in sending the matter to a jury, there are great difficulties. I cannot enforce the attendance of witnesses from Ireland; thus, the issue may come to be tried on written depositions, and then nothing will have been gained by going before a jury rather than before a master. plaintiffs are stated to be very poor; too poor to bear the expense of procuring the attendance of their witnesses in an English county and then it will be told or insinuated to the jury, that the witnesses have not dared to attend, because they were afraid to subject themselves to cross-examination.

There was a considerable fund in the hands of trustees, abiding the event of the suit to surmount the difficulties suggested by his Honour, it was proposed by the counsel of some of the defendants, that the expense of bringing the plaintiff's witnesses

over to England should be paid out of this fund. This proposal, however, could not be carried into effect; for some of the parties interested in the fund were not capable of consenting, and others of them were beyond the seas, so that their consent could not be had.

Mr. Horne insisted, that great injustice would be done to the plaintiffs by directing an issue to be tried in an English county.

Ultimately, however, the court decided, that it could adopt no other course, than to send an issue to be tried in an English county, for the purpose of determining the question of the legitimacy of the plaintiffs.

instance.

Semble-That the pendency of exceptions to the report will not stay proceedings to dissolve an injunction.

In this case, the common injunction had been obtained for want of an answer. Afterwards the answer was put in, and exceptions to it were taken. The master, having intimated an opinion favourable to three of the exceptions, a further answer was immediately put in. On the 8th of July, the master reported the answer sufficient, and on the 9th, the report was filed. Exceptions were immediately taken to the report, and the order to argue those exceptions was served on the defendant. Subsequently to those proceedings, the defendant obtained an order to dissolve the injunction nisi.

Mr. Wakefield moved to discharge this order nisi as irregular.

Mr. Wingfield, contrà.

The motion stood over from time to time, that the practice might be inquired into.

Mr. Wakefield's argument was, that exceptions to a report stayed every thing; that no instance could be produced in which they had not that effect, and therefore, that, till they were disposed of, no step could be taken to dissolve the injunction. He admitted, that, if the defendant, previous to the taking of exceptions to the report, had taken any steps to dissolve the injunction, those steps would have been regular. The present question had no connexion with those cases, where attempts had been made, after an injunction was gone, to revive it upon the ground of exceptions to a report being in pendency.

Mr. Wingfield contended, that exceptions to the report by one party did not hinder the other party from proceeding upon the report to dissolve an injunction. The cases cited were,

Scott v. Mackintosh, 1 Vesey and Beames, 504.

Vipon v. Mortlock, 2 Merivale, 476. Lacy v. Hornby, 2 Ves. and Beames, 293. Raphael v. Birdwood, 1 Swanston, 228. Finally, Mr. Wakefield took another objection to the regularity of the order. He insisted, that, after exceptions to the sufficiency of the answer, and the master's report finding the answer sufficient, the defendant, if he wished to get rid of the injunction, ought not to obtain an order nisi, but that the order should be absolute in the first instance.*

Vice Chancellor.-The latter objection states a clear and decisive ground of irregularity, upon which the order must be discharged. Thus I am not called upon to decide the other question which has been argued.

At the same time I must say, that if I were called upon to determine it, my opinion would be, that exceptions to the master's report do not suspend any proceeding with respect to an injunction. In the argument, the counsel for the plaintiff admitted, that, if there be an order nisi obtained before exceptions are taken to the report, further proceedings are not stayed by the exceptions. What then becomes of the general principle, upon which the plaintiff has relied, that exceptions stay all proceedings?

* Bishton v. Birch, 2 Ves. & B. 44. Lacey v.Hornby 2 Ves, & B. 291.