Page:Federal Reporter, 1st Series, Volume 2.djvu/664

 FAEMBBS LOAS <fe TBXJST CO. V. CENTBAL BAILBOAD. 657 �said stipulation the master took testimony, and, af ter hearing argument, reported in favor of the right of said McKay to recover the sum of $2,217. Upon this report McKay, by his counsel, moves for judgment. �Mr. Lacy, for petitioner, �Mr. Boardman, for defendant. �McCeaby, C. J. There being no longer any fund in court to be administered, and the reeeiver having been discharged, the court hold that ail actions prosecuted by permission of the court against the railroad company, for damages result- ing from personal injuries, must be regarded as common-law actions, in which either party is entitled to trial by jury, unless the same be waived. The chancery powers of the court can be invoked only after judgment, and for the pur- pose of enforcing the judgment, as provided by the orders and decrees heretofore made. No reference of such a case can be made without consent to a master, except for the pur- pose of reporting the facts, in order that the court may deter- mine whether permission to sue shall be given; but by con- sent of parties leave to sue may be given, and a jury may be waived, and the case sent to a referee to ûnd and report upon the issues both of law and of fact. �The report of the master in the case of McKay must be considered as relating to the question of the right to sue, as it was not competent for the parties, by stipulation, to confer upon the master jurisdiction to hear and determine the mer- its. The order referring the case to the master was an order out of chancery. Its sole purpose was to advise the court of the facts neeessary to be understood before determining the application of petitioner for leave to sue the reeeiver. It was not competent for the parties, by agreement, to constitute the master a referee at law, or to confer upon him the powers of such a referee. There has been, up to this moment, no action at law in this court between the petitioner and the reeeiver, or the petitioner and the railroad company. The court itself oould not, without violating its well-settled rules, intermingle its equity and common-law jurisdiction by try- ing a common-law action on the chancery ,side of the court. �v.2,no.S— 42 ����