reduced to writing in the form of a deposition. If there be a single exception, it is where it becomes necessary at the hearing to identify an exhibit. Depositions, therefore, constitute the only form of presenting personal testimony in chancery. But depositions have been sufficiently discussed in the preceding lecture; there being no difference between those taken in legal and in chancery proceedings.

2. Issue sent to a Jury. (a) We have already seen that, as a general rule, the court of chancery decide upon the facts as well as the law; but as a jury is considered the best tribunal to weigh evidence and decide questions of fact, courts of chancery have always had the power of directing an issue to be tried by a jury, whenever they should deem it expedient. Our statute expressly confers this power, and declares that the verdict shall be entered of record, and made use of at the hearing. But it makes no provision as to the manner in which the issue shall be made up. In England, when the question admits of it, the chancellor directs an action to be brought in a court of law; otherwise, an issue is made up by the master, an officer to be described hereafter; and then a feigned declaration is drawn, alleging a wager between the plaintiff and defendant on the result of that issue; but this introduction of a wager seems to be as utterly puerile, as it is clearly unnecessary. Indeed, an action could not be sustained upon a wager in this State; but our court has regulated the practice in these cases, in such a manner as to dispense with a wager. According to the precedent reported, when the court order an issue to a jury, they direct the form of the issue, and which party shall have the affirmative. This party then files a declaration simply asserting the affirmative, and the other party files a plea simply denying it. The issue is then tried by a jury in the usual form, and the testimony on file in the cause may be read on such trial, unless the court otherwise order. The verdict is conclusive, unless the court see reason to grant a new trial. In England, it is not uncommon for issues in law to be in like manner referred to the courts of law; but this practice is unnecessary here, because the same judges officiate in both courts. I have before suggested that the forms of chancery procedure might be readily adapted to all cases in law as well as equity; and does not this expedient of making up an issue for a jury whenever such recourse is necessary, and so shaping such issue as exactly to meet the exigency, take away the only plausible objection that could be raised against so immense an improvement; namely, the want of trial by jury?

3. Master. (b) Our statute empowers each of the courts to appoint such numbers of persons as they think proper, in each county, to act as master commissioners in chancery, for three years,

(a) See Greene . Greene, 5 Ohio, 278; 1 Newland, 350.

(b) See 1 Newland, 6.

unless removed for good cause. These officers, who are usually called simply masters, have power to take depositions both in law and chancery, and to do all other acts of a ministerial nature, commonly performed by masters in chancery. Their fees are the same as are allowed to other officers for like services, and when not ascertained by law, are fixed by the court. They cannot administer oaths generally, but only to answers in chancery and depositions. The statutory provisions go no further; and for the rest of their duties, we must refer to the usages of chancery. In general, masters act as aids to the chancellor, in stating accounts, estimating damages, taking testimony when more is required, making up issues, examining answers when excepted to, investigating titles to real estate, making sale thereof under decrees, and the like. When the services of a master are required, the court make an order of reference to him, with such instructions as the case requires. Having performed the duty, he makes report of his proceedings. To this report either party may file exceptions. The cause is then sent for hearing on these exceptions, and the proceedings are similar to those upon exceptions to answers. If it be found necessary, the cause may be referred back again for further report; but when the report is not excepted to, it is conclusive of the matter in question. It will be readily seen how much this expedient of referring matters to a master diminishes the labors of the court, and facilitates chancery investigations. Courts of law experience great inconvenience from the want of such an officer. Their most complicated matters must be examined by the jury, and determined upon before separation. Twelve minds, unprepared by education or habit, are there required to make the most intricate investigations, in the result of which all must concur, under every disadvantage as to time, place, and convenience; whereas a master in chancery can perform the same duty, under all the advantages of skill, experience, leisure, and singleness of purpose. Here, then, we have another signal instance of the superiority of chancery proceedings.

4. Receiver. (a) Our statute contains nothing on the subject of receivers in chancery; but according to the established usages of this court, they are appointed whenever occasion requires; and this happens whenever there is a controversy touching property, which requires some person to take care of it in the mean time, and the parties cannot agree upon that person. In such cases, to prevent waste or deterioration, or perhaps to complete improvements in progress, the court appoint a receiver, to take possession of such property, as their officer; and it is thenceforth considered as in custody of the court. The duties of the receiver are specified in the order of appointment, and he is required to give bonds for fidelity in such sum as the court shall determine. It will be readily admitted that this power of taking disputed property out of

(a) See Edwards on Receivers.

the control of those who claim to own it, is to be exercised with great caution, and only when a strong case is presented, by the party applying; but then the power is found to be a most salutary and beneficial one. For want of something analogous in the courts of law, litigants often suffer great loss and inconvenience; and thus the employment of a receiver, when the case requires it, may be cited as another peculiar advantage of chancery proceedings.

5. Supplemental Bill. The object of a supplemental bill is generally to bring before the court any matter material to the plaintiff's interest, which has happened after filing the original bill, and before the rendition of the decree. It states the original bill and proceedings thereon, and the event which makes a supplemental bill necessary. A subpoena issues, as on filing an original bill; but this bill is not confined exclusively to matter which occurred before the decree. It may be founded on matter occurring after the decree; but it is then usually connected with a bill of review, or bill of revivor, which will be described hereafter; and takes the name of one of these. A supplemental answer may be filed in like manner, on leave of the court, which is usually granted, as a matter of course. In fact, the grand principle which runs through all chancery proceedings, is to give to each party, at all times, every possible facility for bringing the full merits of his case before the court.

§ 226. Decree. (a) We have now reached that stage in the proceedings, when the court pronounce their decision. This decision is called a decree, and corresponds to the judgment in proceedings at law. Decrees are either interlocutory or final. A decree is interlocutory, when some material circumstance is wanting to enable the court to determine finally between the parties; and for that reason some reference is made of the case. Thus, when a cause is referred to a master, or a receiver is appointed, or an issue is directed to a jury, the order made by the court is an interlocutory decree. A decree is final, when all the circum

(a) Form of a Decree. When the decree is for the complainant, it must of course adapt itself to the exact relief to which he is found to be entitled, and therefore the form must vary to suit each case. In all cases, however, the following order may be observed. After stating the names of the parties, say: This cause came on for hear ing, upon the bill, answer, &c. [stating the condition of the pleadings]; and was argued by counsel; and the court find that, &c. [stating the facts upon which the decree is founded]; and thereupon it is ordered and decreed that, &c. [stating whatever each party is to do, and concluding with the payment of costs].

But when the decree is for the defendant, it is always in the same form, unless with respect to the payment of costs, which, though generally decreed against the complainant, may, for some special reason, be otherwise disposed of. The form is as follows: This cause came on for hearing upon the bill, answer, &c., and was argued by counsel; and the court find the equity of the case to be with the defendant; and thereupon it is ordered and decreed that the complainant's bill be dismissed; and that he pay the costs of this suit within days; and that in default thereof, execu

tion issue therefor, as on judgments at law.

If the bill be dismissed generally, this will be a final bar against further proceedings in another suit. When, therefore, the case is such as to justify such further proceedings, the bill is dismissed without prejudice. See Loudenback v. Collins, 4 Ohio State, 251.

stances necessary to a complete explanation of the matters in litigation are brought before the court, and on full consideration, decided upon. In order to determine whether a decree is interlocutory or final, we must look, not to the stage of the cause at which it is rendered, but to what the decree itself contains. For a decree may be final as to the subject-matter of it, when it does not put an end to the cause. Thus on a bill of foreclosure, a decree of sale of the mortgaged premises is final as to that matter, though a further order remains to be made upon the report of the sale. In practice, the court do not themselves usually frame the decree; but merely indicate its contents in the opinion they deliver. The counsel in whose favor it is rendered then draws up the decree pursuant to the intimations of the court, and submits it to the opposite counsel for approval. If he make no objection, it is entered in the journal as a matter of course. If he object, it is submitted to the court, who so correct it as to make it conform to their decision; and it is then entered upon the journal. We have seen that upon a bill confessed, a decree nisi must be drawn up and filed beforehand; and would it not be a good practice generally to prepare in advance such a decree as you expect to obtain, and show it to your opponent, that it may be submitted to the court for approval, immediately upon delivery of their opinion, and while the whole case is fresh in the minds of all concerned? Our practice in relation to the entering of the decree is much more simple than the English. We have nothing analogous to their enrolment, and of course are not burdened with the distinctions founded thereon. With us a decree is not consummated until its entry in the journal; but then, it can only be altered by the regular action of the court. As the decree must be so shaped as to meet the circumstances of each particular case, no general set of technical forms can be given, answering to all cases, as in judgments at law; but in the books of practice a variety of forms may be found, which can be readily modified to suit any case. In England, the practice is to set forth the facts upon which the decree is made; but in this State, unfortunately, the practice has been to state only the decision of the court, without the facts upon which it is founded; so that the decree contains nothing on its face to show whether it is correct or not; and if it become necessary to review the proceedings, in the manner to be explained hereafter, you have to go behind the decree, and examine the whole case over again. It is much to be regretted that so loose a practice should ever have obtained a footing. A good practitioner will not imitate it; but, on the contrary, will be specially careful to state in the decree all the facts which go to sustain it. Then, a mere inspection of the decree itself will show the principles decided; and the decree will be held to be as conclusive of the facts therein contained, as is the verdict of a jury. The effect of a decree is declared by statute to be the same as of a judgment at law. (a)

(a) It is a bar to an action at law. Loudenback v. Collins, 4 Ohio State, 251.

It is further declared, that a decree for a conveyance, release, or acquittance, if the same be not performed, shall be tantamount thereto. In fact, it is a general and salutary rule that whatever chancery has decreed to be done, shall be considered as done. The court have express authority to enforce their decrees, either by attachment of the person, or sequestration of property; and if necessary, they may issue the same final process of execution as on judgment at law; and the same rules will govern the officer charged with carrying it into effect. If, however, from neglect of parties or any other cause, it becomes impossible to carry a decree into execution without further aid from the court, a bill may be filed for that purpose, and the aid will be given. Such, then, is the effect of a decree, if its natural operation be not prevented; and this, supposing the decree fairly obtained, can only be done in three ways; namely, by a rehearing, by appeal, and by review, which will be described in their order.

Rehearing. (a) If a party conceive himself aggrieved by a decree, he may apply for a rehearing, which is analogous to a new trial at law. The application is by petition, which must be filed within thirty days after the rendition of the decree. The petition must recite the substance of the original bill and subsequent proceedings, and specify wherein the party considers himself injured, concluding with a prayer that the cause may be reheard. It may be allowed by any two judges of the common pleas, or any single judge of the supreme court, who made the order objected to. The petition is then filed with the clerk, who issues process as in other cases; and proceedings on the decree are thereby stayed. This is the proper course to be taken, if you wish a decree once entered to be altered in the minutest particular. On a rehearing, the cause is wholly open with respect to the party in whose favor the decree was rendered; but with respect to the other party, it is only open as to those parts of the decree which are complained of in the petition. New evidence on the merits, which might have been had at the hearing, is not admissible at the rehearing; for this would encourage negligence. But evidence duly taken, though not read; or evidence as to new matter not then prepared for hearing; or evidence to impeach a former witness, is admissible. If the time for a rehearing be suffered to elapse without application, one of the other methods must be resorted to; for the court has no discretion to enlarge the time. The reason for withholding this discretion is, that the party will not be entirely without remedy, if the thirty days be suffered to pass by; for, as will be seen hereafter, he may still resort to a bill of review for nearly all matters which would authorize a rehearing.

Appeal. By our statute, an appeal lies of course to the district

(a) Myres v. Myres, 6 Ohio State, 221.