Thomas Eames versus John Eames, 16 Pick. 141

Shaw C. J. delivered the opinion of the Court. The Court are all of opinion that it was perfectly competent for the Court when holden by one judge, to order an issue to try an important and material question of fact.

The St. 1826, c. 109, provides, that when any suit in equity shall be pending in the Supreme Judicial Court in any county, it shall be lawful for any justice of such Court, as well in vacation as in term time, to receive, hear, and determine all motions relating to the proceedings therein, preparatory to a final hearing thereof, and to make and pass all interlocutory orders and decrees, which may be proper and necessary to the full hearing and final determination of such suit.

Questions, perhaps, of some difficulty, may hereafter arise, as to the exact limits of the powers given to the Court holden by one judge, in these broad and general terms. They must be decided as they occur. Many of the most important decisions made in the course of an equity suit, are in their nature interlocutory. It is clearly implied by the last clause in the 4th

section of the statute above cited, that the power to refer a case to a master, is one which may be exercised by a single judge ; and yet the terms of such order, the instructions to be given to the master for his guidance and direction under such reference, will embrace the principa^ contested points, in the case.

The general view which I believe has been taken of the construction of this statute, without its having been the subject of much judicial discussion, has been, that it vested in the Court, when held by one judge, the general jurisdiction over chancery causes and proceedings, except in rendering a final judgment or decree, but that in practice, this jurisdiction is always to be exercised in such form, as to reserve and present, for the consideration of the whole Court, any question of law which may arise, as well for the purpose of securing to suitors the benefit of the judgment of the whole Court on questions of law, as for securing uniformity of decision in construing and-administering the law.

But whether this view be correct or not, and supposing that questions may arise, in particular cases, which are to be considered and determined when they occur, the Court are all of opinion, that an order, directing the trial of a material fact, by jury, is an interlocutory order, and the power to make it is clearly given by the statute cited.

It has been exercised in many instances, and though, if it was not made a question for the Court, and deliberately considered, perhaps as precedents such cases would not have much weight, yet they tend to show what has been the im pression of judges, under which this practice has grown, and have some tendency to show what has been the early construction of the statute. But supposing a question now made for the first time, we have no doubt, that this power is given by the statute, and that the order directing the issues m this cause to be tried by jury, was properly made.

In general, according to the practice in chancery, a cause wil. be brought to a formal hearing, before an issue is directed. But where it is conceded, that the only material question is that of sanity, a fact peculiarly fit and suitable for a trial by jury, there seems to be no objection to ordering an issue, before a general hearing.