Emma Silver-Min. Co. v. Emma Silver-Min. Co. of N.Y.

• Decision Date: 14 January 1880
• Parties: THE EMMA SILVER MINING CO. (Limited) v. THE EMMA SILVER MINING CO. OF N.Y. and others.
• Court: U.S. District Court — Southern District of New York

1 F. 39

THE EMMA SILVER MINING CO. (Limited) v. THE EMMA SILVER MINING CO. OF N.Y. and others.

United States Circuit Court, S.D. New York.

January 14, 1880

E. W Stoughton, for complainant.

J. E Burrill, for defendants.

CHOATE J.

In this case the several defendants have filed, with the leave of the court, several pleas, some of which are to the whole bill and some of which are to parts of the bill. In these pleas they have set forth the existence of certain records, being judgments in suits at law in this court and in courts of Utah. These judgments are pleaded in bar of this suit, or of part or parts of the relief sought by this bill.

The complainant now, without replying or setting down the pleas for argument, moves that it be referred to a master to take proof of the truth of the pleas. The purpose designed to be accomplished by the motion, as stated upon the argument, is that if the pleas, or some of them, are set down for argument the judgments so pleaded may, upon the argument, be before the court. And a further reason alleged for the motion is that, from the peculiar averments in the pleas as to the effect of the former judgments, and the inferences of facts and law drawn from them in the pleas, which may be correct inferences from the records, as recited, but which might not be held to be correct inferences from the records themselves if exhibited at large, the complainant ought not to be compelled to elect whether to reply to the pleas or to set them down for argument without the production of copies of the records as parts of the pleas.

It is insisted by the defendants that there is neither precedent nor authority for granting this 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 only one of three courses for the complainant, either to demur, 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 practice of the high court of chancery in England, so 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 chancery 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 result of the cases nor of the discussion of the matter by the commentators. In Morgan v. Morgan, before Lord Chancellor Hardwicke, in 1738, 1 Atk. 53, it is reported as laid down by the Lord Chancellor, 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 plaintiff's demand in his new bill, if the plaintiff 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 hearing, it is a waiver of his right of application for such reference, and the court will determine it.

This case shows clearly that the practice of so referring pleas of a former judgment in bar was then recognized as proper and as an existing practice. It does not seem to proceed on any mere rule of court, but it establishes or recognizes the rule of practice as being in itself just and right. The reason of the rule is stated by Lord Redesdale as follows: 'There are some pleas which are pleaded with such circumstances that their truth cannot be disputed, and others being pleas of matter of fact, the truth of which may be immediately ascertained by mere inquiry, it is usually referred to one of the masters of the court to make the inquiry. ' Among the pleas so usually referred to he mentions 'pleas of a former decree,' citing Morgan v. Morgan, and 'pleas of another suit depending,' and says, 'they are generally referred to a master, and if the master reports the fact true the bill stands instantly dismissed, unless the court otherwise orders. But the plaintiff may except to the master's report, and bring on the matter to be argued before the court, and if he conceives 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 practice is adopted almost without modification by Mr. Justice Story, (Story Eq. Pl. Sec. 700,) and with this agree other learned text writers. The reason for the practice thus given is that the matter of which reference is to be made is one 'the truth of which can be immediately ascertained by mere inquiry. ' That fact generally is the fact of the existence of a certain record. The cases show that in referring the truth of the plea, the questions of the identity of the parties, and the identity of the cause of...