the end of it, his landlord's property, not in any way confounded with his own; if, therefore, it should appear that a tenant has either voluntarily or negligently permitted the boundaries of his own land to get confused with that of his landlord, the Court will, in all probability, compel him to pay the costs of his misconduct or negligence.

SECTION V.

Proceedings under Decrees to assign Dower.

THE Court will not assist a widow in the assignment of her dower, out of her husband's estate, if there is any doubt as to her legal right; therefore, if the title to dower be disputed, it refers to the decision of a Court of Law,2 either by directing an issue,3 or by ordering the bill to be retained for a certain time, with liberty to the plaintiff to bring a writ of dower, as she may be advised.4

When the right to dower is not disputed, the Court of Chancery assumes a concurrent jurisdiction with Courts of Law, and will direct it to be assigned.

1 Attorney-General v. Fullarton, 2 V. & B. 264.

Lord Red. 121.

Mundy v. Mundy, 2 Ves. jr. 122.

* Read v. Read, and Curtis v. Curtis, Lord Red. 122; 2 Bro. C. C. 620, S. C.; D'Arcy v. Blake, 2 Sch. & Lef. 390; Badgley v. Bruce, 4 Paige, 98; Sandford v. M'Lean, 3 John. Ch. 117; Drickle v. Timrod, 1 Desaus. kin, 1 John. Ch. 111; Phelps v. Green, 3 John. Ch. 302. Johnson, 1 Munf. 554, note; Davison v. White, 2 Munf. Munf. 279; 4 Kent (5th ed.) 71.

109; Wilkin v. WilSee also Johnson v. 527; Ball v. Ball, 3

• The result of the various decisions upon this subject is, that Courts of Equity will now entertain a general concurrent jurisdiction with Courts of Law in the assignment of dower in all cases. 1 Story Eq. Jur. § 624, c. 12. See also for a full statement of the law on this subject, ib. § 625, 632; Herbert v. Wren, 7 Cranch, 376; Powell v. Monson Manuf. Co. 3 Mason, 347, 459; Swaine v. Perine, 5 John. Ch. 482; Greene v. Greene, 1 Ham. 535; Grayson v. Moncure, 1 Leigh, 449; Kendall v. Hovey, 5 Monroe, 284; Stevens v. Smith, 4 J. J. Marsh. 64; 4 Kent (5th ed.) 71; London v. London, 1 Humphrey, 1, 12. The claim of dower is considered, in New Jersey, as emphatically, if not exclusively, within the cognizance of the Common Law Courts. Harrison v. Eldridge, 2 Halst. 401, 402; Hartshorne v. Hartshorne, 1 Green Ch. 349; Wells v. Beall, 2 Gill & John. 468; Smith v. Eustis, 7 Greenl. 41; Blunt v. Gee, 5 Call, 481; Mayburry v. Brien, 15 Peters, 21.

6 Mundy v. Mundy, ubi supra.

The right being established, and the property out of which the wife is dowable being ascertained, the next step is to assign the dower. This may be done either by the Court itself in chambers,1 or by directing a commission to issue.2

A commission to assign dower is nearly in the same form, and is made out, executed and returned in the same manner, as a commission of partition.3

It is to be observed, that, as in the case of settlement of boundaries, it generally forms part of the decree, that when the dower has been assigned, possession shall be delivered to the plaintiff.*

The widow is also entitled to an account of the arrears of her dower, and this, notwithstanding the death of the heir pending the suit, although at Law her right to damages would have been lost by that event. The widow's right to the rents and profits accrued from the death of her husband is not limited to the time of filing the bill. Formerly it was held, that the Statute of Limitations, 21 Jac. I. c. 16, did not affect proceedings to recover arrears of dower, but the recent statute, 3 & 4 Will. IV. c. 27, s. 41, expressly applies to them.9

1 Meggot v. Meggot, Seton on Decrees, 261; see also Tinney v. Tinney, ib. 262; Goodenough v. Goodenough, 2 Dick. 795.

2 Seton on Decrees, 261; Wild v. Wells, 1 Dick. 3; Huddlestone v. Huddlestone, 1 Cha. Rep. 38; Lucas v. Calcraft, 1 Bro. C. C. 134; 2 Dick. 594, S. C.; Mundy v. Mundy, 2 Ves. jr. 125; 4 Bro. C. C. 295, and the commission in Seton on Decrees, 263.

Ante, Sect. III.

Meggot v. Meggot, Seton on Decrees, 261; Goodenough v. Goodenough, 2 Dick. 795.

'See Hazen v. Thurber, 4 John. Ch. 604; Newbold v. Ridgeway, 1 Harring. 55; Chase's Case, 1 Bland, 206; Keith v. Trapier, 1 Bailey Ch. 63; Swaine v. Perine, 5 John. Ch. 487, 488; Davis v. Logan, 9 Dana, 187. As to her right to rents and profits, against the alienee of her husband, see Sillman v. Bowen, 8 Gill & John. 50; Rickard v. Talbird, Rice Eq. 159; Gordon v. Stevens, 2 Hill Ch. 429; Marshall v. Anderson, 1 B. Monroe, 199; Kendall v. Hovey, 5 Monroe, 284; Russell v. Austin, 1 Paige, 192; Whitehead v. Bellamy, 2 Hayw. 240; Wood v. Lee, 5 Monroe, 57; Golden v. Maupin, 2 J. J. Marsh. 240; Johnson v. Thomas, 2 Paige, 377; Steiger v. Hillen, 5 Gill & John. 121; Tod v. Baylor, 4 Leigh, 498.

Curtis v. Curtis, 2 Bro. C. C. 620; see contra, Lord Red. 122.

Curtis v. Curtis, ubi supra; Mundy v. Mundy, 2 Ves. jr. 122; Oliver v. Richardson, 9 Ves. 222.

It may be mentioned here, that interest will not be allowed on arrears of dower.1

When the assignment has been directed to the Master, the same decree may direct the account of rents and profits,2 but where the assignment of dower is by commission, it must be deferred till the cause comes on for further directions.

Lord Redesdale observes, that "in the two cases of partition and assignment of dower, as no costs can be given in a Court of Common Law upon a writ of partition or a writ of dower, no costs have commonly been given in a Court of Equity upon bills for the same purposes";3 and, as respects dower, this appears to be the present rule of the Court, in cases where the widow comes into Court for the single purpose of having dower assigned her. The rule, however, is subject to exception where previous questions are raised, in litigating of which the party is vexatious; 5 therefore, where the widow had, without any just pretence, been kept out of her dower, costs were given her. In Meggot v. Meggot, also, the Court appears to have awarded the widow her costs, up to the time of the decree.8

SECTION VI.

Proceedings in the Master's Office.

ACCORDING to the ancient practice of the Court, all references to a Master used to be made to one of the two Masters sitting in Court, as assistants to the Lord Chancellor or Master of the Rolls,

1 Lindsay v. Gibbon, cited 3 Bro. C. C. 495; Wakefield v. Childs, 1 Fonb. 23. Meggot v. Meggot, ubi supra.

2

Lord Red. 122.

Lucas v. Caleraft, 1 Bro. C. C. 134; see also Sir S. Romilly's note of the same case, ib. ed. Belt (n).

6

Lucas v. Caleraft, ubi supra.

• Worgan v. Ryder, 1 V. & B. 20; Beames on Costs, 36.

Seton on Decrees, 261.

But see Outhwaite v. Outhwaite, referred to by Mr. Beames in his Treatise on Costs, 36, note 5.

The office of Master in Chancery has been abolished in England; but this section, in reference to the proceedings in the Master's office, has been retained in this edition because the office still exists in many of the United States. The Master's office is a branch of the Court; and, it seems, the Master has power to

when the reference was made; but the modern practice, where there had been no previous reference, was to refer it "to the Master in rotation," and, where there had been a previous reference, "to the Master to whom this cause stands referred." 2

It may be mentioned, in this place, that after a cause has been referred to a Master, it cannot be withdrawn from that Master without an order of the Court, and that such an order will not be made unless on very special occasions, such as the incapacity of the Master, from illness, to attend to the business, which, to justify such a removal, must be shown to be of a very urgent nature. In one case, it appears, that Lord Eldon directed a cause to be removed on the allegation of counsel, that he found the Master in such a state, from his advanced age and infirmity, that it was not proper to go into the business before him.3 Sometimes where the Master has died and a successor has not been appointed, the Court will make an order that the cause, if the matter of the reference requires immediate attention, should be transferred to another Master. And it occasionally occurs that, where it is very important to the interests of the parties that some particular branch of a cause in a Master's office should be proceeded with during the long vacation, the Court will make an order directing that branch of it to be referred to the "Vacation Master."

control the proceedings of parties before him. Stewart v. Turner, 3 Edw. Ch. 458. In reference to a Master's fees and allowance for his services, see Woodruff v. Straw, 4 Paige, 407.

1 Prac. Reg. 363; where a reference is made for the examination of Court Rolls, touching any custom, it should not be to any one Master but to two at the least. Ibid.

The Circuit Courts of the United States may appoint standing Masters in Chancery in their respective districts, both the Judges concurring in the appointment; and they may also appoint a Master pro hoc vice in any particular case. United States Equity Rule, 82. It is improper for a Master to perform any official act, as Master, in a cause in which he is solicitor, or partner of the solicitor. Brown v. Byrne, Walk. Ch. 453.

When a notice was to appear before A, a Master, and the return was by B, a Master, that the defendant did not appear, it was held to be irregular. Whipple v. Brown, Harring. Ch. 436. Where one Master has begun proceedings under an order of reference, they should be completed by him, and the party obtaining the order cannot transfer the proceedings to another Master to be completed. Bishop v. Williams, Walk. Ch. 423.

3 Anon. 9 Ves. 341.

In one case it appears that upon the death of a Master, a general order was made, that all matters referred to him should be transferred to another. Prac. Reg. 165.

Conduct of the Cause.

The prosecution of the decree devolves upon the plaintiff, he being considered, in most cases, as the person principally interested in forwarding it. A reference upon an interlocutory order 1 is, for the same reason, usually prosecuted by the party obtaining it, whether plaintiff or defendant.2

In order, however, to prevent delay in the prosecution of the decree, it is provided, by the 48th of the Orders of 1828, "That where any decree or order referring any matter to a Master, is not brought into the Master's office within two months after the same decree or order is pronounced, then any party to the cause, or any other party interested in the matter of the reference, shall be at liberty to apply to the Court by motion or petition, as he may be advised, for the purpose of expediting the prosecution of the decree or order."

It is provided, by the 56th of the same Orders, "That where the party actually prosecuting a decree or order, does not proceed before the Master with due diligence, then the Master shall be at liberty, upon the application of any other party interested, either as a party to the suit, or as one who has come in and established his claim before the Master, under the decree or order, to commit to him the prosecution of the decree or order, and that, from thenceforth, neither the party making default nor his solicitor shall 1 When an account is ordered the decree is interlocutory in regard to the details. Humphrey v. Foster, 13 Grattan (Va.) 653.

* Quackenbush v. Leonard, 10 Paige, 131; Biddulph v. Fitzgerald, Sausse & S. 434; Holley v. Glober, 9 Paige, 9. As a general rule, the party obtaining a reference is entitled to the prosecution thereof in the first instance; and where reference is directed at a hearing in which both parties have an interest, it is to be prosecuted by the solicitor of the plaintiff; and in either case, the adverse party has no right to carry the decree to the Master's office until the prosecution of the reference has been committed to him, either upon default of the party originally entitled to the prosecution, or by a provision in the decree directing the reference. Quackenbush v. Leonard, supra. In the Circuit Courts of the U. States, whenever any reference of any matter is made to a Master to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the Master for a hearing on or before the next rule day succeeding the time when the reference was made; if he omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the Master, at the costs of the party procuring the reference. Equity Rule, 74.