Page:Federal Reporter, 1st Series, Volume 1.djvu/50

42 niDBBAL BEPOBTEB. �allow it to be used to embarrass and protract the litigation, or, under cover of a reference to a master to aseertain facta capable of being ascertained on inquiry, to lead the parties into a long litigation before a master upon a reference which ought to be condueted in the ordinary course of proceeding, upon issue joined, by the taking of proofs before an examiner, to be Bubmitted to the court upon the hearing of the cause. �In the present case an inspection of the pleas shows that, while the existence of records such as are alleged in the pleas may be immediately ascertained on inquiry, the further qu9B- tions intended to be raised by the pleas, whether they are for the same causes of action, and whether or not the same evi-- dence could have been offered in the two suits, and other matters averred in the pleas, as inferences from the records, are not questions that ought to be referred upon the principle on which such a reference is allowed. But, as the whole pur- pose of this motion is to set before the court the records, alleged to be set forth according to their tenor in the pleas, that the truth of the existence of records answering the de- scription of those set forth can obviously be immediately ascertained on inquiry, it falls within the principles of the practice established by the English court of ohancery to order such a reference. �Independently of this practice of referring the question of the truth of the averment in a plea of the existence of a certain record, it would seem to be entirely competent for the court, upon the suggestion of the plaintiff or of its own motion, to require a defendant, before the plea is argued, to produce a copy of the record relied on by him, of which only a recital, according to the impleader's understanding of it, or his construction of it, ia set forth in the plea. Such practice can do the defendants no possible harm, and may greatly facilitate the argument of a cause, and save both parties from useless litigation, and relieve the court from hearing and determining a merely imaginary or fictitious case. �For, making ail proper allowance for the plea being entirely honest and truthful, within the apprehension of the pleader, it may well be that inferences partly of fact and partly of law, ��� �