
    Ames vs. Blunt and others.
    Practice, ‘ under the revised statutes, as to removing causes from a vice chan- ‘ cellor to the chancellor before hearing, and as to referring causés and motions to a vice chancellor for his decision. ■
    If a cause commended before a vice chancellor is directed to be heard by the ‘chancellor, the whole cause is before the chancellor; and all orders and decrees thereafter made by him are to be .entered with the register or assistant register. V • '
    Where the chancellor holds' a term of the vice 'chancellor’s court, the orders and decrees made by him are to be entered with the clerk of the vice chancellor.
    Where 'the vice chancellor has been counsel.In a cause pending before him, • or is otherwise legally incompetent to decide the’ same,, or any motion or petition" in- the cause, the chancellor may direct the same to. be heard before, himself, or he may refer the same to the vice chancellor of any other , circuit. • . ' ,
    When a cause pending before the chancellor is in readiness for a hearing, ei- - ther party may apply for leave to have it heard before a vice •chancellor.
    ■ The' petition for such reference should state the situation of the cause ; and , notice" of the application'must be given, to the adverse party..
    If a greater number of causes are placed on the calendar of the chancellor or submitted to him, than he can hear and decide, he will without any ap- ■ plication from either party, refer such causes as he.thinks proper to the vice chancellors. ■ " , ' ■
    •Principles on which selections of causes for the decision of' vice' chancellors will be made. , - ' • '
    Where the order referring a cause to' a vice chancellor to hear and decide the ■ same is general, the "whole cause is before him, and all subsequent orders. and proceedings therein are to, be made and had before the vice chancellor. . ' - .
    Where some particular motion or branch of a cause only is referred to a vice chancellor,'the general proceedings, in the cause must continue to be had before the chancellor. - ,.
    
      If a special motion or other special application is referred to a vice chancellor for his decision, the chancellor may at the same time direct that all other proceedings and questions in the cause be had and heard before such vice chancellor.
    This suit was originally commenced before the chancellor, who from the press of business before him not having time to hear the same, referred it to the vice chancellor of the first, circuit, to be heard and decided by him; with liberty to either party to bring the same to a hearing at the next or any subsequent term of such vice chancellor’s court, on the usual notice. A question having arisen before the vice chancellor as to his jurisdiction and powers under the order of reference, it was submitted to the chancellor for his decision. He thereupon delivered the following opinion:
   The Chancellor.

The question immediately before me does not call for the consideration of all of the provisions of the revised statutes as to the jurisdiction, powers and duties of the several officers of this court. It may, however, be useful, and save much litigation and expense, at once to examine and settle the construction of these various provisions-By the constitution, the powers of this court are vested in the chancellor as the supreme judge thereof. These powers cannot be taken from him by any act of the legislature ; neither was it intended to be done by any provision of the revised statutes. Independent of the provision in the fifth section of the fifth article of the constitution, the legislature may direct the appointment of other officers of this court to perform such subordinate duties therein as shall from time to time be found necessary for the more convenient administration of justice. And by that special provision of the constitution, they are expressly authorized to vest those subordinate powers and duties in the circuit judges, ex officio.

The relation which the several vice chancellors bear to the chancellor under the revised statutes, is substantially the same as that which the master of the rolls and vice chancellor of England bear to the chancellor there. The master of the rolls has concurrent power with the chancellor to hear and determine originally the same causes and matters as the chancellor ; except in lunacy and bankruptcy,,which in England do not belong, to ,the court but to the chancellor in person. This is substantially the same- jurisdiction ,as that conferred upon the'circuit judges in their several circuits under the second section of that .title of the- revised ’statutes, which relates exclusively to this court. (2 R.S. 168, § 2.) The office of vice chancellor,' in England, was created'by the act of the.23d of March,'1813. (Statutes at large, ch. 24.)' ■ He ■ is authorized to hear and determine all causes and matters pending in' the court of chancery as the lord chancellor shall from ’ time, to’ time direct; but he cannot ‘reverse, alter, or discharge any decree or order made by the master of the rolls or of the -lord chancellor, without the special authority of the ..latter. This is the same power conferred upon the circuit judges by sections four and six of the title of the revised statutes before referred to, and subject to the same restriction which ,is found in the third section. The powers,and duties of masters and examiners are also conferred upon the vice chancellors in certain cases. ■ (2 R. S. 169, § 5, 6 ; 180, § 84, 85; 626, § 8.

When the proceedings are originally commenced before a vice chancellor in a case^ where.he has jurisdiction under the second section, he has as full power as the chancellor himself to hear and finally decide the cause ; and to enforce the performance of any order or decree therein, and to revise and correct, the proceedings of any inferior .'officer of the court. But all decrees and orders made by him; are subject to be reversed, ' discharged, ór altered by the chancellor, on appeal., (2 R, S." 177, § 57.) 1 -

Where a cause commenced before a vice chancellor is in readiness for hearing, the proceedings may be removed and the cause heard before the chancellor in person, whenever from the difficulty of the case or for any other reason the latter may think proper so tó direct. (2 R. S. 178, § 63.) If a cause is brought before the chancellor under this pro- ■ vision of the revised statutes, the whole case is before him. The orders and decrees made therein by the .chancellor are to bé entered with the ' register or assistant register. And all subsequent proceedings are to be before the chancellor, nti'less by his order the cause is again remitted to the vice -chancellor. But where the chancellor or the vice chancellor of another circuit holds the stated term of a vice chancellor, as authorized by the fifty-third section, (2 R. S. 177, § 53,) the order or decree is to be entered as having been made by the chancellor, or substituted vice chanceller, holding the stated term of the vice chancellor of the particular circuit where the proceedings were pending. And it must be entered in the office of the clerk residing in such circuit. In such cases the subsequent proceedings in the cause will remain, and be continued before the vice chancellor of that circuit. The fifty-third section has made no provision for the hearing and deciding of a special motion, or other collateral application in the cause, in vacation. Nor does it provide for a case where it would be inconvenient for the chancellor or the vice chancellor of another circuit to hold the stated term of a vice chancellor who had been counsel in the cause, or who for any other reason could not hear and decide upon the motion or other application. In such cases there can be no doubt of the right of the chancellor to direct the motion or application to be made before himself. And under the general power given by the sixth section, (2 R. S. 169, § 6,) he may authorize the same to be heard and decided by the vice chancellor of any other circuit, at such time and place as will be most convenient to such vice chancellor and to the parties in the cause.

The fourth section of this title provides that the hearing and decision of any motion or of any cause set down for hearing before the chancellor, may be referred by his order to any vice chancellor, subject to the appellate jurisdiction of the chancellor, (2 R. S. 169.) The practice of entering an order and setting down a cause for hearing was abolished by the rule of the 4th of August, 1823. By the former practice an order to set the cause down might be entered at any time after the cause was in readiness for hearing. The proper construction of that part of the section therefore is, that either party may apply to the chancellor, as soon as the cause is in readiness, for leave to bring the same to hearing before such vice chancellor as may be most convenient to the parties or their.counsel and who has sufficient leisure to hear and décide the cause. The petition on which such application is. founded should státe the nature of the suit, and show that it is in readindss for hearing,' either upon bill and , answer, plea or demurrer, or on pleadings of proofs, Or otherwise. And due notice of the application must be given to the adverse'party.- If the parties neglect t'o. make súch application, and more causes are placed upon "the calendar of the chancellor than he is .able to hear, and decide,' he. will, without the request of. either party, refer such causes as ..he is unable to hear in person to such vice chancellor as is most convenient. Under this provision of the revised, statutes, the chancellor will retain such causes to be heard before himself ' as, from the nature of' the litigation or the amount in con-trove sy, will bq. likely to be carried up- by appeal; and also such causes as have been partially .examined by' him on the ' merits, upon motion to dissolve an injunction or otherwise. Mortgage cases and. other causes- in which there is no real litigation, and which are' entitled to a preference by being placed in either of -the three first classes on. the calendar, will not be referred to a vice chancellor unless some special, reasons-are shown which may render such reference necessary.

When the order referring the cause to a vice chancellor to 'hear and decide the same .is general, the whole cause is. to be considered before the vice chancellor, as fully as if the original proceedings had been commenced before, him ; subject to the restrictions which are contained in the third section. . And . all motions, petitions, and other question's. which are subsequently made' or presented, or which may arise in the cause, must be heard and decided by the vice chancellor, .unless otherwise specially directed in .the order, of refer- . ehce. But where a special. motion or. petition; which only relates to some collateral matter "or particular branch of the 'cause, is referred to a vice chancellor to hear arid decide thereon, the cause still remains before the chancellor. Every proceeding which is necessary or proper to enable the vice chancellor to' decide the particular- matter referred to him, may - be done under his order or direction. He may therefore direct a reference to a master to ascertain facts, make" an order for the production of books and papers &c. and may enforce the observance of any such order made by him, in the same manner as if the whole case was before him. As to every other branch of the cause, the proceedings must still be had before the chancellor, as if no such reference of the particular matter had been made.

Even in these cases of the reference of a motion or other special application to a vice chancellor, the authority given to the chancellor by the sixth section is sufficiently extensive to enable him to direct all other questions and proceedings in the cause to be had and heard before the vice chancellor to whom the particular matter is referred. In such a case a special provision to that effect may be inserted in the order of reference.

This cause having been referred generally to the vice chancellor of the first circuit to hear and decide the same, all special motions and other proceedings therein, while the cause remains with him, must be made and had before the vice chancellor.  