Thomas C. Butler v. Lee & Leavitt

['Special Verm, January, 1869.] Thomas C. Butler v. Lee & Leavitt. Where issues of fact, relating to accounts, have been referred by consent to a master, who has filed his report, and a motion is pending to confirm it, neither party has a right to a trial of the same issues to a jury afterward. J. Burnet, for plaintiff. Hunter, for defendants. [MAJORITY — Hasans, J.] Hasans, J. An entry was made in this case of reference to a master, directing him to state an account between the parties, and the master was required to report his account and the evidence. For some reason not apparent, the right was reserved to produce other testimony before the court than that submitted to the master. While the testimony was on hearing before the master, amended pleadings were filed, based on supposed disclosures obtained before the master. The whole testimony was taken on all the issues presented by the pleadings. The report of the master was filed, exceptions taken, and a motion made to confirm. The court is asked to send the same issues of facts found by the master to the jury. It is impossible for the master to state an account without finding these issues. He was acting strictly within the order of reference to which both parties consented, thereby waiving their right of trial by jwy- Nor does it appear to be right to allow either party to try the issues before the master, and then allow them to speculate on the result of another trial on the same issues to a jury. Motion overruled.