examination has accidentally failed, by reason of the witness having then been incompetent, from interest, which has since been removed.1 So, where a witness, previously examined, has made affidavit in support of a state of facts before the master, he may be examined viva voce before the master, to the matter of his affidavit.2 So, where the previous examination was confined to the proof of exhibits at the hearing, he may be examined before the master, in proof of other exhibits. But if a witness, who has once been examined to the matters in issue, is re-examined before the master, without a special order; though the re-examination be to matters not before testified to by him, it is an irregularity, and has been deemed a sufficient cause for suppressing the second deposition. To the case of witnesses who have not already been. examined, this rule requiring a special order is now generally understood not to apply; for it is said, that] where a case is sent to a master for inquiry into a fact, it is in the nature of a new issue joined; and what would be evidence in any other case upon that issue, is evidence before the master; the evidence already in the cause, upon the same matter is admissible before him, and other witnesses, to the matter referred, may also be examined as of course.5 But the rule 1 Sandford v. Mince, 2 Vern. 472. 1 Ves. 398; 3 Bro. Ch. C. 370, S. C.; 2 2 Dan. Ch. Pr. 1385; Rowley v. Adams, 1 My. & K. 543. 3 Ibid. Courtenay v. Hoskins, 2 Russ. 253. Callow v. 4 Smith v. Graham, 2 Swanst. 264. But the suppression was made without prejudice to any application for the re-examination of the witness. And see Greenaway v. Adams, 13 Ves. 360; Vaughan v. Lloyd, 1 Cox, Ch. C. 312. See, also, Jenkins v. Eldridge, 3 Story, R. 299, 308, 309, where the general rule was reviewed and acted upon, by Story, J. But where the examination before the master was confined to points collateral to the matters in issue at the hearing, it has recently been held that an order was not a necessary pre-requisite. 1 Hoffm. Ch. Pr. 538; Swinford v. Horne, 5 Madd. 379. And such, it seems, had been the practice, for more than a century; as appears from Medley v. Pearce, West, R. 128, per Ld. Hardwicke. 5 Smith v. Althus, 11 Ves. 564; Hough v. Williams, 3 Bro. Ch. C. 190; Gass v. Stinson, 2 Sumn. 605, 612. But see Willan v. Willan, 1 Cooper, Ch. C. 291; Hoffman's Master in Chancery, 45, 46. does apply to the re-examination of witnesses who have once been examined before the master, to the same facts, it being held irregular, except upon a special order.1 § 337. A third mode in which the Court obtains further information for itself, is by sending a feigned issue to a Court of Law, for trial by a Jury. It will be recollected, as we have already seen, that according to the doctrine of Equity, the facts are finally found by the Chancellor, and that, of course, all the subordinate means of ascertaining them, and verdicts among the rest, are used only for his information, and not imperatively to govern and control his judgment. Hence it is, that it is competent and usual for him to order the terms on which the trial shall proceed, and what evidence the parties shall respectively admit or adduce.2 Thus, in directing an issue, the Court will, in its discretion, order the parties to make such admissions as it thinks are necessary to raise the question to be determined; that they produce at the trial, any books, papers, and documents, in their possession, power or control, which it may deem useful for a full investigation of the matter in issue, and which, as we have heretofore seen, it may order in the principal cause; and that wit 1 Remsen v. Remsen, 2 Johns. Ch. 500; Cowslade v. Cornish, 2 Vez. 270. 2 Whether, in such case, the parties ought to be deprived of the use of any legal evidence, quære; and see Beachinall v. Beachinall, 1 Vern. 246. In this case Lord Nottingham, in directing a trial at law, ordered that a certain deed should not be given in evidence; and for this cause, on review, the Ld. Keeper reversed the decree. In Apthorp v. Comstock, 2 Paige, 482, where the genuineness of a deed was in question, the Chancellor, in directing an issue, ordered, that the proof of the execution of the deed, taken before the commissioner, prior to its registration, and which entitled it to be read at law, should not be received at the trial as any evidence of the execution of the deed, or of the genuineness of any of the signatures upon it; to which order no exception was taken. And in Elderton v. Lack, 2 Phil. R. 680, it was held, that where the plaintiff's title to relief in Equity depended on a legal right, the Court ought not to interfere with the trial of that right in a Court of Law, by requiring the defendant to admit any fact upon which that right depended. And see Smith v. E. of Effingham, 10 Beav. 589. 3 See supra, § 295–307. nesses who have deposed in the cause may be examined viva voce, or their depositions read at the trial; that new witnesses shall not be adduced, without sufficient previous notice of their names, residences, and additions, to enable the other party to ascertain their character. The Court will also, in its discretion, designate which party shall hold the affirmative of the issue; will order that the trial be by a struck jury, if either party desire it, and the justice of the case so requires; and will impose such restrictions upon the parties as will prevent all fraud or surprise, on the trial.1 § 338. Whether the Court, in directing an issue, has a right to order the parties themselves to be examined, without their consent, is a question upon which there appears to have been some conflict of opinion. It is agreed that this may be done where the parties are merely nominal or fiduciary. Where the facts in dispute rest only in the knowledge of the parties; or where oath is so balanced by oath that it is proper for a Jury to weigh their credit, as, for example, where an injunction is asked for upon the affidavit of one party and opposed upon that of another, and an issue is in consequence directed, it is also considered proper that both the parties themselves should be examined. In such cases they are not considered as witnesses for themselves, or for each other, but as witnesses for the Court, to satisfy its own conscience.2 In other cases, such examinations have been refused, unless by mutual consent, and subject to the discretion of the Court;3 and even then, it has been observed, the practice of allowing parties to be examined for themselves is to be resorted to with great caution; and never, unless, under the peculiar cir 1 2 Dan. Ch. Pr. 1296, 1297. See Apthorp v. Comstock, 2 Paige, 482, 485, for a precedent of the exercise of this power of directing the course of the trial, mentioned in the text. 2 De Tastet v. Bordenave, 1 Jac. R. 516; Dister, ex parte, Buck's Cas. 234. And see Hepworth v. Heslop, 6 Hare, 622; 13 Jur. 384; 2 Dan. Ch. Pr. 1298; 1 Hoffm. Ch. Pr. 505, 506; Fletcher v. Glegg, 1 Young, 345. 3 Howard v. Braithwaite, 1 V. & B. 374; Gardiner v. Rowe, 4 Madd. 236; Hepworth v. Heslop, supra. cumstances of the case, justice could not be attained without it: and certainly never, when, from the position of the parties, an unfair advantage would be given by it to one over the other. Thus, where the fact in issue appeared to have occurred in the presence of only the plaintiff and a late partner of the defendants, who was since dead, an examination of both parties was held improper, as calculated to give the plaintiff an undue advantage.1 The order for the examination of a party does not affect the character or weight of his evidence; it only removes the objection which arises from his being a party in the cause." § 339. According to the course of the Court of Chancery, the trial of an issue directed to a Court of Law is generally conducted in the same manner and by the same rules as are observed in other trials at law; unless the Court of Chancery, in ordering the issue, has given different directions. In those States, however, in which a trial by Jury, in cases in Equity, may be claimed as of right, it is conceived that, in the absence of any statute expressly or by clear implication empowering the Court to impose terms on the parties, or to interfere with their legal rights in regard to the course of proceeding in the trial, no such power could lawfully be exercised. But where no such right of the parties exists, this power of the Court remains, as long recognized in Chancery proceedings in England, with the modifications which have been adopted here, in our State tribunals, or created by sta Parker v. Morrell, 2 Phil. R. 453; 12 Jur. 253. 2 Rogerson v. Whitington, 1 Swanst. 39. 3 In Marston v. Brackett, 9 N. Hamp. 336, 345, the right exercised by the Court seems clearly to have been derived from the statute. The practice on this point, in the different States, is various and unsettled. But where the right of the party to a trial by Jury is absolute and uncontrolled by any constitutional or statutory limitation, it is conceived that the power of the Court, as a Court of Chancery, to modify the exercise of the right is taken away. It is only where the trial depends on the pleasure of the Court, that the course of proceeding can be thus modified. Cujus est dare, ejus est disponere. tutes. But where the devisee in a will seeks to establish it against the heir, the invariable course of Chancery requires that the due execution of the will should be proved by the examination of all the attesting witnesses who are in existence and capable of being examined; and that the same course be pursued upon the trial of an issue of devisavit vel non; except in the cases where, by the rules of evidence in Courts of law, their production may be dispensed with. For as a decree in support of the will is conclusive upon the heir, against whom an injunction would be granted, if he should disturb the possession after the decree, it is held to be reasonable that he should have the opportunity of cross-examining all the witnesses to the will, before his right of trying the title of the devisee is taken from him.1 7. EVIDENCE ALLOWED ON SPECIAL ORDER. § 340. Another mode in which a Court of Chancery, in the exercise of its discretion, and to do complete justice and equity upon the merits, will administer the law of evidence by more flexible rules than are recognized in the Common Law, is apparent in the allowance of evidence upon special order; which is done, either by admitting some kinds of evidence which it would be inconvenient and unreasonably expensive to produce in the regular way; or by permitting the parties to supply defects and omissions of proof, and to give explanatory evidence, at later stages in the cause than the ordinary rules will allow. One instance, of the former class, is in the admission of vivâ voce testimony, in the proof of exhibits at the hearing, instead of requiring proof by depositions, in the ordinary course; a subject which we have already considered, in another connection.2 Another case of the same 1 See ante, Vol. 2, § 694, and the cases there cited. See, also, McGregor v. Topham, 3 H. L. Cas. 132. 2 Supra, § 308 – 310, 319. |