might be obtained, as of course, after a decree, saving just exceptions; his Honor's decision was afterwards confirmed by the certificates of the Secretaries to the Master of the Rolls, and of the Registrars and Six Clerks, and has since received the sanction of Lord Langdale, M. R., in Paris v. Hughes.1

This rule, however, will not apply where the party has been previously examined as a witness, in which case a special application will be necessary, as in other cases, and the Master will be directed to settle the interrogatories for the purpose of precluding the re-examination of the party to matters as to which he has been before examined.2

The examination of witnesses before a Master is effected, either by exhibiting interrogatories, or by viva voce questions, addressed to the witness himself in the Master's presence. The former method is the old practice; the latter was introduced by the Orders of 1828.4 By the 69th of these Orders, "The Master shall have power, at his discretion, to examine any witness viva voce; and in such case, the subpoena for the attendance of the witness shall, upon a note from the Master, be issued at the Subpoena Office; and that the evidence upon such viva voce examination shall be taken down by the Master or by the Master's clerk, in his presence, and preserved in the Master's office, in order that the same may be used by the Court, if necessary." 5

By the 72d of the same Orders, "The Master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require."

When a party wishes to examine a witness before the Master, upon interrogatories, he must have the interrogatories prepared in the same way as interrogatories for the examination of witnesses

1 1 Keen, 1.

1 Keen, 1; and see Purcell v. M'Namara, 17 Ves. 434.

See Story v. Livingston, 13 Peters, 359; Remsen v. Remsen, 2 John. Ch. 501, 502.

69th and 72d Orders, 1828.

See Herrick v. Belknap et al., 27 Vermont, 695. In New Jersey, when, by a decretal order of the Court, any inquiry before a Master is directed to be made in a cause, and the examination of witnesses shall be necessary to obtain the proper information, such examination, if required by either party, shall, at the expense of the party requiring it, be reduced to writing by the Master, in the form of depositions, and returned and filed with the report. Chancery Rule III.

in the cause. They must be signed by counsel, and when prepared, they must be engrossed upon parchment, and brought into the Master's office; they are not, however, as in the case of interrogatories, for the examination of parties under the directions of the decree, settled by the Master, unless where they are directed to be so settled by the order of the Court, as in the case of witnesses to be examined, who have been before examined in the cause. If they are directed to be settled by the Master, the Master must sign his allowance of them in the same manner as he signs interrogatories for the examination of parties. If they are not to be settled by the Master, he merely marks them as brought into his office.

It seems that the reception of interrogatories for the examination, before the Master, of witnesses who are not parties to the record, or who have not been previously examined in the cause, is not, like the examination of parties, a matter in the discretion of the Master, but that he is bound to receive interrogatories from the parties tendering them, and that the circumstance that the facts, to prove which they are tendered, were in issue, and might have been proved in the cause, is not a sufficient reason for rejecting them.4

If the Master refuse to receive interrogatories for the examination of witnesses, the proper course seems to be to apply to the Court, by motion, that he may be directed to receive them.5 In Willan v. Willan, however, the Lord Chancellor ordered the application to stand over, at the same time directing that a petition should be presented, stating the particular circumstances, and the dates.

But, although a Master is bound to permit the examination of any witnesses before him, who have not before been examined, it is to be understood that he is only obliged to do so when the examination is proposed to be taken at a proper period of the investigation before him; he cannot receive them after other witnesses have been examined and publication passed, without a special 1 Ante, p. 908.

3 Bro. C. C. 190.

2 Smith, 151.

✦ Hough v. Williams, 2 Smith, 151.

Ibid.; see, however, Forbes v. Peacock, 12 Sim. 535.

order of the Court,1 which will only be made upon surprise,2 or under the same circumstances as will induce the Court to make such an order after publication has passed before hearing.3

It may be observed here, that according to the ordinary course of practice, the party intending to examine witnesses ought, previously to bringing in his interrogatories, to carry into the Master's office a state of facts, detailing the circumstances which he intends to prove. This is necessary, in order to enable the opposite party to cross-examine the witnesses, and to know what evidence it will be necessary for him to adduce to support his own case; and it seems that the examination of witnesses taken before such a state of facts has been brought in, would be irregular. In general, the state of facts should be brought in by the party supporting the affirmative, but this is a rule of convenience, and a state of facts may be brought in tendering a negative issue, upon which it will be competent, to the party bringing it in, to examine witnesses in support of his negative statement. It seems, however, that, in such a case, the other party can only cross-examine the witnesses; he cannot, regularly, adduce evidence in support of the affirmative proposition, without bringing in a counter-state of facts; but in Willan v. Willan, where he omitted to do so, and the plaintiff (who was the party bringing in the negative state of facts) had examined the defendant upon interrogatories before the Master, putting every question that would bring out complete information as to the nature and extent of his claim, and how he was entitled to have it allowed, &c., and had gone on to the examination of witnesses to support his negative state of facts, and had permitted the defendant to examine his own witnesses to prove the affirmative, without objecting that he had not brought in a counter-state of facts; Lord Eldon held, that the conduct of the plaintiff amounted to a waiver of the objection, arising from there being no state of facts previous to the examination of the defendant's witnesses. The same view was afterwards taken of the practice by the Vice-Chancellor in Trezevant v. Frazer. In 1 Cooper, 291; 19 Ves. 590, S. C.

2 Ibid.

$ Ante, p. 975.

6

See Willan v. Willan, 19 Ves. 590; Cooper, 291, S. C.

Cooper, 291; 19 Ves. 590, S. C.

that case, under a decree directing an inquiry into the outstanding estate of an intestate, the plaintiffs carried in a state of facts, charging that certain sums of money had been lent by the intestate to one of the next of kin, who was a defendant in the cause, and were outstanding in his hands, and examined the defendant upon interrogatories, who, in his examination, set up a case, showing that the moneys alleged to be lent had been given to him by the intestate, which he offered to prove by a variety of documents, which he set out; whereupon the plaintiffs amended their examination, by charging that the alleged documents were forgeries, and proceeded to examine witnesses, in support of their state of facts, and the defendant also examined witnesses, without bringing in a counter-state of facts. Upon a petition to suppress the defendant's depositions, on the ground of irregularity, because there had been no counter-state of facts on his part, the Vice-Chancellor held, that the examination of the defendant was a sufficient notice to the plaintiffs of the case intended to be proved by the defendant, and that the plaintiffs had waived their right to object to the defendant's evidence, by their acquiescence in his examination of witnesses.

The depositions of witnesses, examined upon interrogatories under a reference to a Master, may, when the witnesses reside in London, or within twenty miles of it, be taken either by the Examiner or by the Master; where they reside above twenty miles from London, they must be taken by commission. In either case, their attendance, for the purpose of examination, may be compelled by subpoena, which is in the same form as the ordinary subpæna ad testificandum, and must be sued out, served, and enforced in the same manner.

In strictness, the examination of witnesses, after a decree, upon interrogatories, ought to be taken by one of the examiners of the Court, who formerly examined all such witnesses as the Master thought necessary, unless the Master certified that a commission was requisite. A practice, however, has grown up, which authorizes the examination of witnesses, upon interrogatories, in the Master's office, by the Master himself. This practice originated with a custom, which appears to have prevailed, of inserting in the decree a direction that the Master should be armed with a

1 Parkinson v. Ingram, 3 Ves. 603.

commission to examine witnesses, and to direct a commission into the country, if he thought fit. How it came that such a direction was inserted in the decrees of this Court, does not appear; but it seems, that it was not of course, though it was always inserted, if desired.2 The practice, however, appears to have given rise to differences between the Masters and the Six Clerks, and Examiners of the Court, about the right of taking and keeping such examinations, and to whom the commissions and the depositions thereby taken should be returned, &c., in consequence of which, an Order was made, dated the 27th February, 1667,3 whereby it was directed, that if, upon any reference, the Master should find any particular points or circumstances needful to be proved, to ground his report upon, which were not fully proved, nor could be examined to, before the hearing of the cause, he should then direct the parties to draw interrogatories to such points or circumstances only, and examine thereupon, in Court, by the Examiners, if the witnesses shall be or reside within ten miles of London, as by the rules of the Court they ought to do; but that, if further off, and the parties desired it, he might direct a commission into the country, which was to be made out by the Six Clerks, and which said commission and the depositions thereby taken, were to be returned, unopened, to the respective Six Clerks, who ought to have the keeping thereof, and publication was to pass according to the course of the Court in such cases. And it was declared that all other examinations in the Court, for the future, not taken and kept of record by the Six Clerks or Examiner as aforesaid, should from thenceforth be void, and should not be admitted to ground any report, or otherwise made use of in any proceedings in this Court, or at Law.

The above Order, however, does not appear to have been observed, and we find the practice of examining witnesses, in the Master's office, expressly sanctioned by another Order dated the 23d June, 1687,5 which appears to have been promulgated to prevent the Master's clerks from examining the witnesses, and en1 Parkinson v. Ingram, 3 Ves. 603; Seton on Decrees, 12. Parkinson v. Ingram, 3 Ves. 607.

Beames's Ord. 218.

♦ Parkinson v. Ingram, ubi supra.

Beames's Ord. 285. This appears to be the Order alluded to in Parkinson v. Ingram, 3 Ves. 604, under the description of an Order made the 23d June, 3 & 4 James II.