Page:Federal Reporter, 1st Series, Volume 1.djvu/49

 EMMA SILVER MIN'O 00, V. EMMA SILVEE MIn'g CO. 41 �"There are some pleas which are pleaded with sucb circum- stances that their truth eannot be disputed, and others being pleas of matter of fact, the truth of wlikh may be immediately ascertained by mere inqulry, it is usually referred to one of the masters of the court to make the inqiiiry," Among the pleas 80 usually referred to lie mentions "pleas of a former decree," citing Morgan v. Morgan, and "pleas of another suit depend- ing, " and says, "they are generally referred to a master, and if the master reports the fact true the bill stands instantly dis- nyssed, unless the court otherwise orders. But the plaintilï may escept to the mastcr's report, and bring on the matter ,to be argued before the court, and if he conceivos the plea to be defective in point of form or otherwise, independent of the mere truth of the fact pleaded, he may set down the plea to be argued as in the case of pleas in general." �This statement of the praetice is adopted almost without modification by Mr. Justice Story, (Story Eq. PI. § 700,) and with this agree other learned text writers. The reason for the praetice thus given is that the matter of which reference is to be made is one '^the truth of which can be immediately ascer- tained by mereinquiry." That fact generally is the fact of the existence of a certain record. The cases show that in refer- ring the truth of the plea, the questions of the identity of the parties, and the identity of the cause of action, may also be included in the reference to the master. Tarleton v. Barnes, 2 Keen, 632-635 : Wild \. Hobson, 2 Ves. & B. 110. �It is objected by the defendants in this case that to refer to a master the truth of the plea would in efïect refer to him the trial of the issue that would be raised by a replieatiou to the plea, and would subject the defendants to great hardship, and indeed not advance the cause. No doubt, in the absence of fixed rules regulating the matter to be referred, the court would, in its discretion, limit the reference as lircumstancea and the nature of the pleas might require, so that it should be in effeet what it is indeed intended to be, only the refer- ence of a matter, "the truth of which can be immediately ascer- tained on inquiry." The praetice being adopted for faeilitating and simplifying the disposition of causes, the court will Lot ��� �