It may well be that the legislature may deprive the circuit courts of original jurisdiction in actions for the foreclosure of mortgages. It is unnecessary to determine whether it could or not. But it is quite certain that this clause contains no authority for it, while leaving those courts jurisdiction of this class of actions, to attempt to withdraw from them an acknowledged part of the judicial power and vest it in the jury. Under the old equity system, the chancellor might at any time refer questions of fact to a jury, but it was merely to inform his conscience. He might, if he saw fit, disregard their verdict, and take it upon himself to dispose of the questions of fact absolutely, as he could have done in the first instance. And I think the verdict here is entitled to no greater force and effect than it would have had in an equity case independently of this act of 1867. The whole question was determined by this court in the case of Freeman v. McCollum and others, 20 Wis. 360, where, notwithstanding an express provision in the act of 1864, requiring the courts to submit issues of fact in these cases to a jury, the court decided that the circuit court was not bound to submit such issues to a jury unless it saw fit.1 I think, therefore, the evidence fails to show any legal defense to this action, if it had been brought by the company. And the motion of the plaintiff for judgment ought to have been granted. By the Court. The judgment is reversed, and the cause remanded with directions to enter judgment for the plaintiff in accordance with the prayer of the complaint." FEDERAL RULES OF CIVIL PROCEDURE (1938). RULE 39(c). Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. 1 A discussion of the evidence is omitted. 2 See, accord, Brown v. Buck, 75 Mich. 274 (1889). Compare Lipscomb v. Condon, 56 W. Va. 416 (1904), where the court said (p. 440): "That it is competent for the legislature to require jury trials in equity proceedings cannot be doubted. In many instances it has authorized and required courts of equity to direct issues out of chancery to the law side of the court for the determination of questions of fact proper for ascertainment by a jury." See also Durfee, Cases on Equity (1928) 83, n. 7; 1 Whitehouse, Equity Practice (1915) § 377. In North Carolina and Texas the state constitutions provide for trial by jury in equity cases. In Arizona, the state constitution has been construed to require jury trial in equity cases because of a statute in force when the constitution was adopted which provided there for. See Brown v. Greer, 16 Ariz. 215 (1914). TESTIMONY IN EQUITY. UNDER the classical chancery practice, as we have seen, the testimony in an equity suit was taken wholly by depositions. This practice was changed by statute in England in 1852,1 and before that time had been changed by statute or rule of court in most of the United States so as to provide for the oral examination of witnesses before the equity judge in most cases.2 The method of taking testimony in equity suits in those states which retain a separate equity procedure is a matter of local practice which each student should investigate for his own state. In general, four methods may be available: (1) Testimony may be taken orally before the equity judge without a jury in the same manner as in a trial without a jury at law. 4 (2) Testimony may be taken before the equity judge sitting with a jury. This is the modern equivalent of the old issue out of chancery. We have already considered the question how far the verdict of the jury in such a case is binding on the equity judge and how far it is merely advisory. (3) There may be a reference of the case to a master in chancery 3 to hear the evidence and make findings of fact and report them to the court." When the master's report is made, either party to the suit may ordinarily except to his findings and the case will be argued before the equity judge on those exceptions. The report is then ordinarily confirmed, or modified and confirmed, by the court, or the court may make an order of re-reference. In some states, references 1 By the Chancery Amendment Act of 1852, 15 & 16 Vict. c. 86, §§ 28-41. 2 But no change in practice was made in the federal courts until 1912. See Federal Equity Rules (1912) Rule 46; North v. Herrick, 203 Fed. 591 (N. D. N. Y. 1913); Hughes v. Reed, 46 F. (2d) 435, 442 (C. C. A. 10th, 1931). Cf. Hoock v. Sloman, 145 Mich. 19 (1906). 3 The practice in a number of the states is outlined in 1 Whitehouse, Equity Practice (1915) § 344. 4 See p. 631, supra. 5 As to masters in chancery, see 1 Whitehouse, Equity Practice (1915) §§ 353-372. 6 Whether or not the evidence is to be reported by the master is decided by the court in the order of reference. Even if this order does not provide for the reporting of the evidence, it is the duty of the master at the request of either party to report so much of the evidence as is necessary to enable the court to pass upon his conclusions of law to which exception has been taken. See 1 Whitehouse, Equity Practice (1915) § 361; Parker v. Nickerson, 137 Mass. 487, 493 (1884). 7 In some states where there is a reference by consent the master's report is final and cannot be excepted to. to a master are the usual procedure; in other states and under the federal practice, they are exceptional.1 (4) The testimony may be taken by a master or commissioner appointed by the court, reduced by him to writing, and reported to the court. This procedure is similar to the old chancery practice except that the testimony may be taken before the master or commissioner on oral examination of the witnesses by counsel for the parties, and that there is no requirement of secrecy. This procedure is unusual in most states unless the parties consent to it. In the code states, testimony in cases formerly in equity is ordinarily taken in the same manner as at law, but there are usually statutory provisions for references to masters in certain cases.3 LOS ANGELES BRUSH MANUFACTURING SUPREME COURT OF THE UNITED STATES. 1927. 272 United States 701. ORIGINAL application for leave to file a petition for mandamus directed to one of the District Judges of the Southern District of California. MR. CHIEF JUSTICE TAFT delivered the opinion of the Court. This is a motion for leave to file a petition for mandamus by the Los Angeles Brush Manufacturing Corporation, against a Judge of the United States District Court for the Southern District of California. The petitioner is a defendant in two patent suits pending in that court, in one of which the Stabler Parker Company is complainant; and W. B. Clancy and others are complainants in the other. The suits are bills in equity brought to restrain the defendant from infringement of a patent for a new and improved brush. The defendant answered and the complainants moved to set the two cases for trial. Counsel for the complainants said that while his clients would prefer to try the case before the court, he would ask, if the court had not time to try them, that the cases be referred to a special master. Counsel for the defendant objected to such a reference, and said that if the reference was to be made, he would like to have a notation 1 The Federal Equity Rules (1912). Rule 59, provided in part as follows: "Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it." For the similar provision of the Federal Rules of Civil Procedure (1938) Rule 53(b), see p. 460, supra. 2 As to publication of depositions under modern practice, see 1 Whitehouse, Practice (1915) § 350. 3 See pp. 458-459, 460, 631-633, supra. in the record that no showing had been made of exceptional circumstances, and that the cases were referred to the master over his objection.1 Thereupon the defendant filed this petition asking a rule against the Judge to show cause why a mandamus should not issue directing him to vacate the order of reference to the master and to place the causes on the calendar for trial in open court.2 . . . ... Rule 46 requires that in any trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or the rules, and that the Court shall pass upon the admissibility of all evidence offered as in actions at law. Equity Rule 59 provides that, save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. These rules were adopted by this Court after a thorough revision. Committees of the Bar from the nine different circuits were invited to assist the Court in the matter. The Court, after much consideration, concluded that the then method of taking evidence in patent, and other causes in equity, had been productive of unnecessary expense and burden to the litigants and caused much delay in their disposition, and that the effective way to avoid the making of extended records, unnecessary to a consideration of the real issues of the causes, was to require, so far as it might be possible and practicable, that the evidence taken in patent and other cases should be taken in open court, and that only in exceptional cases should the cause be referred after issue to a special master. Though there has been some criticism and complaint of the inconveniences that arise from this change of the rules, the Court is strongly convinced that the change has justified itself; and it has no purpose to amend the provisions of Rule 46 and Rule 59. Were it to find that the rules have been practically nullified by a district judge, or by a concert of action on the part of several district judges, it would not hesitate to restrain them. One of the causes for complaint of the general administration of justice is the expense it entails upon the litigants; and, so far as it reasonably may do so, this Court is anxious to minimize the basis for such complaints. There is no reason why a patent litigant should be subjected to any greater expense than any other litigant, except as it may be involved in the inherent and inevitable difference between the presentation of the issues as to the merit and validity of a patent grant, and that which obtains in the litigation of an ordinary bill for relief in equity, or of an action at law upon a debt or for a tort. 1 The text of the order of reference, which recited that the reference was made because of the congestion of the docket and the "protracted length of patent trials," is omitted. 2 A summary of the allegations of the petition is omitted, as is so much of the opinion as decides that the Supreme Court had jurisdiction' to issue a writ of mandamus. Of course, courts must exercise a discretion in reference to the order of business to be conducted before them, and all the cases can not be heard at once. It is in the interest of economy of time that there should be hearings, first in one class of cases, and then in another, provided each class may be given an opportunity within a reasonable time. Arguments based on humanity and necessity for the preservation of public order require that criminal cases should be given a reasonable preference; but even this must be conceded with moderation, and what time there is of the court, in view of the whole docket, must be equitably distributed. The reason given in the order for referring these cases to a special master is that there is congestion in the court's calendar and that there are many other cases entitled to be heard first, including a large number of criminal causes which should be preferred over civil causes as to the trial thereof, that other civil litigation has not been accorded a fair proportion of the time of the court, and that the condition will continue unless many of the patent cases, including this cause, be disposed of by such a reference. In view of the recitals of the order, we are not inclined to infer that there has been any deliberate abuse of discretion in this matter, or to hold that there may not sometimes be such a congestion in the docket as to criminal cases as would justify a district judge in not literally complying with the requirements of the two rules in question. There has been an emergency, due to a lack of judges in some districts, which we can not ignore. We shall therefore deny leave to file this petition, but are content to state our views on the general subject, with confidence that the district judges will be advised how important we think these two rules are, and that we intend, so far as lies in our power, to make them reasonably effective for the purpose had in view in their adoption. Leave denied.1 FEDERAL RULES OF CIVIL PROCEDURE (1938). RULE 43. EVIDENCE. (a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.2 3 (e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits pre 1 See Lane, "Twenty Years under the Federal Equity Rules," 46 Harv. L. Rev. 638, 641-643, 650-652, 654–655 (1933). 2 The remainder of Rule 43(a) and Rules 43(b)–(d), dealing for the most part with the admission and exclusion of evidence, are omitted. 3 See Rule 53(b), p. 460, supra. |