CHAP. II. he present when the order is pronounced he is a prisoner instantly.(8) Personal service of an order as a foundation for process of contempt for disobeying it, has been dispensed with, or some other, on special motion substituted, where the former was impracticable;(9) where a party was in court, and must have had notice of the decree, as to transfer stock, &c.(10) had absconded to avoid the decree;(11) had been called for several times and could not be found ;(12) or was of singularly ferocious character, service of order of commitment was made good service by leaving it at his dwelling house ;(13) where the first order is in effect nisi, a subsequent or fresh order for commitment must be obtained. [See $ 30.] A motion for commitment for breach of a former order must be supported by affidavit of service, though recited in a subsequent order obtained by the party against whom the order was made.(14) $36. Reference, orders for, in what stages, order of course or special, how framed, at it Contains. REFERENCE AND ISSUE AT LAW. 1. Reference; If the order is for reference, a certified copy thereof is obtained from the office, served by entering it with the master designated in the order or standing rule hereafter mentioned. Orders for reference may be upon every petition; and in the very first stage of its proceedings, as well as those by bill, as for scandal or impertinence [see § 20 and post ch. viii. So in various stages ofthe suit (15) as after pro confesso for non appearance, on exception to answer, on special reference before hearing, or after a prior exa mination and hearing. These orders are, in certain cases which will be pointed out hereafter, of course, in (c) 1 Atk. 55. There are cases where, though the language of (3) Grant 256-8. (10) 12 Ves. 202. vid. 5 J. Ch. 555. (12) 4 Madd. 462. (13) 2 Dick. 477. 1 Grant 257-8. party avoided service, service was made good on his solicitor, there being no clerk of the party in court. 12 Ves. 2. (14) 3 Atk. 619. The principle of substituted service is recognized in this state in the case of Ideley, who attempted to elude the service of an order, in relation to the custody of an infant. The case is not reported, but may be seen in the records of the assistant register's office. (15) vid. Bla. 220. 221–7. spe all others special. The order (1) should be cautiously CHAP. II. framed under the advice of counsel when special, to meet the case, for the master must be guided by its cific directions, except when governed by the standing rules.(2) The defendant may be directed to produce on oath, all books, papers, &c. in his custody or power, and be examined on oath on such interrogatories as the master may direct relative to transactions set forth in the pleadings.(3) The subject of references, though not foreign to the design of the present work, is yet so much within the particular province of the masters who are usually competent to direct proceedings before them, that I shall confine myself to some alterations and provisions recently adopted, and refer for illustration to the books upon this department of the practice. 37. orders of An order for a reference when entered of course must be executed by a master residing in the same county with Before what Master; 1, on the solicitor who obtained the order, unless a a different master is agreed upon by the parties; or, if there is no course; 2,spemaster in the same county legally competent, the order cial or decremay be executed by a master in an adjoining county. If tal. the reference be by a special order or decree of the court, it may be made to any particular master by name, or to any master in a particular county or place in the discretion of the court, and if no particular master or county or place be named or specified in the order or decree, it must be executed by an injunction master or a taxing master only, unless some other master is agreed upon by the parties.(4) (38. If the party entitled to prosecute such decree or order of reference do not procure and serve the summons, (men- How speeded. tioned in the next rule,) within 30 days after the decree or order is entered, any other party or person interested in the matter of the reference will be at liberty to apply to the court by motion or petition to expedite the prosecution of the decree or order.(5) (1) See directions in 2 J. Ch. 595. 3 J. Ch. 587. 4 J. Ch. 445. See further, Bla. 220-225-7. 55. app. (2) He may now for instance proceed de die in diam, &c. sed. vid. Bla. 226. Hoff. Mr. 5. 6. (3) 2 J. Ch. 513. See decretal orVOL. I. der to produce books, &c. and directing examination of all parties, Eq. Draft 593.613-14. 628. Sed. Hoff. Mr. 14. 17. 18. 31. (4) R. 99. See Masters, ch. 1. 2. (5) R. 101. 5 CHAP. II. ¡ 39. what time. Where a matter is referred to a master to examine and report thereon, on bringing the order or decree into his office he must assign a day and place for hearing the parMastersduty. ties, and give to the party bringing in such decree or order a summons for the adverse party to attend at the day and § 40. Summons and place so appointed. The summons must be served on service, & for the adverse party, or his solicitor, such time pevious to the day appointed for hearing, as the master may deem reasonable, and direct; taking into consideration the nature of the matters to be examined, and the residence of the parties. But the time of service, unless otherwise ordered by the court, must not be less than two days, where the solicitor of the adverse party resides in the city or town where the hearing is to take place; not less than four days where he resides elsewhere; and not less than two days in addition for every fifty miles from the residence of such solicitor to the place of hearing.(6) ¿ 41. How refer ence speeded after sum. mons, $42. Return of After the proceedings have been commenced by the service of a summons to attend before the master, if the party entitled to prosecute such decree or order do not proceed with due diligence, the master will be at liberty, upon the application of any other person interested, either as a party to the suit, or as coming in to prove his debt, or establish a claim under the decree or order, to comsummons and mit to him the prosecution of the reference.(7) regulation of proceedings. At the time and place appointed in the summons for the hearing of the parties the master must proceed to regulate, as far as may be, the manner of its execution; as for example, to state what parties are entitled to attend future proceedings, direct the necessary advertisements, point out which of the several proceedings may properly be going on pari passu, and as to what particular matters, interrogatories for the examination of the parties appear to be necessary, and whether the matters. requiring evidence shall be proved by affidavit or by exCertificatefor commission to amination of witnesses, and in the latter case, if necesexamine wit- sary, issue his certificate for a commission. If he think ness, and fur- it expedient he may then, or upon any subsequent attenther regula- dence, and from time to time as circumstances may re tions. 43. quire, fix the time within, or at which, any proceedings be- $44. Production of books, &c. Where by any decree or order(9) of the court CHAP. II. books, papers or writings are directed to be produced before the master, for the purposes of such decree or order, it shall be in the discretion of the master to determine what books, papers, or writings are to be produced, and when and for how long they are to be left in his office; or in case he shall not deem it necessary that they should be left or deposited in his office, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient.(10) Where some or one, but not all of the parties do attend the master at the time and place appointed, whether the same is fixed by the master personally, or upon a summons or warrant, the master shall be at liberty to proceed ex parte if he thinks it expedient so to do, considering the nature of the case, and if he has proceeded ex parte, such proceeding shall not in any manner be reviewed by him, unless upon a special application to him for that purpose by the party who was absent, the master shall be satisfied such party was not guilty of wilful delay or negligence, and then only upon payment of all costs occasioned by his non-attendance; such costs to be certified by the master at the time, and paid by the party or his solicitor before he shall be permitted to proceed on the warrant to review. And every summons or warrant to attend before a master shall be considered peremptory.(11) § 45. Ex parte and opening for review. ¡ 46. The master will be at liberty to examine any witness or party, or any creditor or other person coming in to Viva voce or claim before him, either upon written interrogatories or interrogatory viva voce, or in both modes as the nature of the case may appear to him to require; the examination or evi (9) See order for production of 388. As to production of examination. CHAP. II. dence being taken down at the time by the master or his clerk in his presence, and preserved, in order that the same may be used by the court if necessary.(12) 847. Reference, on what principles condacted. ¿ 48. nesses. The general principles upon which an examination may be conducted, are prescribed in the leading case upon the subject,(13) and are analagous to those prescribed by decisions, and adopted or modified by the standing rules in relation to examinations before a vice-chancellor, examiner or commissioner: the proceedings, in which. as well as in a reference upon an interlocutory decree after an examination, or for the examination of a party by order on motion or petition, or before hearing upon exceptions to an answer, or to take proof to compute, and for sale on taking bill pro confesso in a suit by bill, will be particularized in the regular order of proceeding. The mode and manner of preparing, serving, settling, filing interrogatories, when the examination is not oral; and of the proceedings whether before a master or the above named officers, as adapted also to the character of the suit and nature of this reference, will also be reserved, with the exception of a few other general rules.(1) Process of subpœna to compel the attendance of witSub. for witnesses before a master (as well as before a vice-chancellor, examiner or commissioner,) may issue of course, the time and place of attendance must be specified in the writ, and witnesses may be punished for contempt, if they fail to attend and submit to an examination.(2) $ 49. for scandal, If a party wishes to complain of any matter introducExceptions ed into any state of facts, affidavit, or other proceeding impertinence before the master, on the ground that it is scandalous or or insufficien- impertinent, or that any examination of a party before cy. him is insufficient, such party will be at liberty to file exceptions thereto with the master; and without any order of reference he may take out a warrant for the master to examine the matter upon such exceptions; and (12) R. 105.* (13) Remsen vs. Remsen, 2 J. Ch. (1) Vid. Blake 220 to 285. & other |