Page:Federal Reporter, 1st Series, Volume 1.djvu/48

 40 FEDERAL REPORTER. �It is insisted by the defendants that there is neither prece- dent nor authority for granting tins motion, and that the practice established by the equity rules of the supreme court, 33 to 38, is inconsistent with such a practice, and allows ouly one of three courses for the complainant, either to dcmur, take issue, or set down for argument. �The ninetieth rule of the supreme court provides that the practice of this court "shall be regulated by the present prac- tice of the high court of ehancery in England, bo far as the same may reasonably be applied consistently with the local circumstances and local convenience of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice." �On the question whether the practice of the English court of ehancery sanctions the reference to a master to ascertain the truth of a plea setting up a former judgment or decree in bar of the suit I think there is abundant authority in favor of the practice. �The defendants claim that the practice, if any, is limited to pleas of another suit pending, and perhaps to pleas of another suit pending in the same court. But this is not the resuit of the cases nor of the discussion of the matter by the commentators. In Morgan v. Morgan, before Lord Chancelier Hardwicke, in 1738, 1 Atk. 53, it is reported as laid down by the Lord Chanoellor, in that case, as a rule that •where a defendant pleads a decree of dismission of a former cause for the same matters in bar of the plaintifï's demand in his new bill, if the plaintiS does not apply to the court that it may be referred to a master to state whether there is such a decree, but sets down the cause upon the new bill for hear- ing, it is a waiver of his right of application for such refer- ence, and the court will determine it. �This case shows clearly that the practice of so referring pleas of a former judgment in har was then recognized as proper and as an existing practice. It does not seom to pro- ceed on any mere rule of court, but it establishes or recog- nizes the rule of practice as being in itself just and right. The reason of the rule is stated by Lord Eedesdale as follows; ��� �