Page:Federal Reporter, 1st Series, Volume 1.djvu/100

92 FBDEBÀI< HBPOBTEB, �We consider that the practice adopted by Mr. Stetson har- monizes better with the rules than that whioh was adopted in this case. The practice which we approve is this : The mas- ter appoints a day for proceeding with the reference, and gives notice, by mail or otherwise, to the parties or their solic- itors. We think the solicitor should be notiûed, whether the party is or not; though, probably, under rule 75, notice to the party is a good notice. If the defendant does not appear, the master proceeds, ex parte, and makes ont the profits and damages, if he can, from the evidence produced by the plain- tiff. If it appears that an account of profits is necessary to a just decision of the cause, and is desired by the plaintiff, he makes an order that the defendant fnrnish an account by a certain day, and adjourns the hearing to that day. The de- fendant should be served personally with a notice of this adjournment, and of the order to produce his account, if it is intended to move for an attachment in case he fails to appear. The service may be made by any disinterested per- son, and need not be by the marshal. If the defendant then fails to appear and account, he will be in contempt. �The mode of proceeding which we do not approve, is for the plaintiff to take out a notice, in the first instance, before any hearing has been or can lawfully be had, requiring the defendant to furnish an account by a certain day on pain of punishment for contempt. We doubt the power of the mas- ter to make such an order upon a mere inspection of the record, and we consider the practice inexpedient if it is lawful. �The defendant's first objection is sustained. His objection, which is of more real importance in most cases, that the ser- vice must be by the marshal, we overrule. ��� �