counsel. But in Bonus v. Flack, 18 Ves. 287. the Lord Chancellor said that there was no order requiring it, and held that it was not necessary. In Keene v. Price, 1 S. & S. 98. the Vice Chancellor held that the examination of an officer of the court, as a sequestrator did not require the signature of counsel.

If the party is not in a state of mind competent to put in his examination, the court will appoint a person to put it in for him. Page v. Page, 1 Newl. Pract. 325.

For order for commission to take examination. See Hand's Pract. 135.

For a commission to examine parties in the Exchequer. See 2 Fowl. 295.

The time for the return of the commission should be left to the Master, not limited by the order. Hairby v. Emmett, 5 Ves. 683. Sufficiency of Examination.

Formerly, if the examination was insufficient, an order might have been obtained to refer the interrogatories and examination to the Master. See Interrogatories, supra. Harr. 475. Purcell v. M‘Namara, 12 Ves. 166.

But now by Lord Lyndhurst's orders, 73, 2 Russ. (Appendix), 24. It is ordered that if any party wishes to complain that any examination taken in the Master's office is insufficient, he shall be at liberty without any order of reference by the court to take out a warrant for the Master to examine such matter.

By Lord Lyndhurst's orders, 74, 2 Russ. (Appendix), 25. It is ordered, that the Master in deciding on the sufficiency or insufficiency of any answer or examination, shall take into consideration the relevancy or materiality of the statement or question referred to.

Exceptions to Certificate.

Exceptions will lie to the Master's report of the sufficiency of the examination. See Interrogatories, supra. Purcell v. M‘Namara, 12 Ves. 166.

An exception in general terms is sufficient. S. C. Lucas v. Temple, there cited.

But the Master of the Rolls observed upon the inconvenience of the practice, and that the proper course would be (as in the case of costs), by a petition pointing out the particular grievance, and praying leave to except, and the exceptions being over-ruled, gave costs beyond the deposit on this ground.

Scandal and Impertinence.

By Lord Lyndhurst's orders, 73, 2 Russ. (Appendix), 24. It is ordered, inter alia, that if any party wishes to complain of any matter introduced into any state of facts, affidavit or other proceeding before the Master, on the ground that it is scandalous or impertinent, he shall be at liberty, without any order of reference by the Court, to take out a warrant for the Master to examine such matter, and the Master shall have authority to expunge any such matter which he shall find to be scandalous or impertinent.

Re-examination of Party.

In the Practical Register by Wyatt, 256. it is said, that leave to amend interrogatories for the examination of a defendant had been refused. And in Bromly v. Child, 1 Dick, 128. S. C. Anon. 3 Atk. 511. Lord Hardwicke held that further interrogatories could not be exhibited for the examination of a defendant, without the leave of the Court. And in Wood v. Milburn, cited 3 Mad. 282., the Master refused to allow further interrogatories for the examination of a defendant without an order. But in Cowslade v. Cornish, 2 Ves. 270. S. C. (Cornish v. Acton) 1 Dick. 149., Lord Hardwicke held that leave was not necessary, and that it was in the discretion of the Master at what time, and how often, the defendant should be examined. And in Willan v. Willan, 19 Ves. 593. it is said by the Lord Chancellor, alluding to the above cases, to have been settled by Lord Hardwicke, in the latter case, that leave was not necessary, in contradiction to his former decision. And it has been since so held. Lynn v. Buck. 3 Mad. 280. Price v. Lytton, 5 Mad. 465. Sidden v. Forster, 1 S. & S. 335.; and see Ex parte Saunderson, 2 Cox, 196. (otherwise in the case of a witness; post.) after a motion for payment of money into court, upon the examination, it seems that leave is necessary. Hatch v. 19 Ves. 116. So where further production required. See Production of Books, &c. ante.

Admission of Evidence before the Master.

By the order of the 27th February, 1667, Beames, 219. Parties were, at their peril, to make their full proof before publication; but if, upon any reference to the Master, for stating an account, or the like, he should find any particular points or circumstances needful to ground his report upon, which were not fully proved, nor could properly be examined to before the hearing, he was to direct the

parties to draw interrogatories to such points or circumstances only. But it early became the practice not to examine to matters of account before the hearing, Ib. note. And see Gilb. For. Rom. 109. And Decrees for Account, post. And now, upon a reference to the Master, he cannot refuse to receive interrogatories from a party for the proof of facts, on the ground that they were in issue and might have been proved in the cause. Hough v. Williams, 3 Bro. 190. And see Willan v. Willan, Coop. 292. S. C. 19 Ves. 592.

Where the Court directs an inquiry into a fact it is in the nature of a new issue joined; and what would be evidence in any other case will be evidence before the Master. Smith v. Althus, 11 Ves. 564.

be

Evidence in the cause, though not read, or entered as read at the hearing, may be read before the Master. S. C. But see argument for plaintiff, in Law v. Hunter, 1 Russ. 101. and for defendant, in Walker v. Woodward, 1 Russ. 109. And Decrees for Account, post. Depositions in a former cause between the same parties may read before the Master without an order. Anon. 3 Atk. 524. Though not at the hearing. S. C. Depositions in a cross-cause may be read before the Master, though the cross-bill was dismissed. Lubiere v. Genou, 2 Ves. 579. See Affidavits, post.

Examination of Witnesses before the Master.

Formerly the decree contained an express direction that the Master should be armed with a commission to examine witnesses, and to direct a commission into the country if he thought fit; but this direction was not of course; and the regular course was that the examiner was to examine such witnesses as the Master thought necessary, unless the Master certified that a commission was necessary. See Parkinson v. Ingram, 3 Ves. 607. Miller v. Stephens, Appendix (4).

By the order of the 27th February 1767, Beames, 218. it is expressly directed that the examination of witnesses should be before the Examiner, if the witnesses resided within ten miles of London, or if not, that the Master might direct a commission.

But this order was not observed. See order of the 23d of June 1687, Beames, 285. And the above direction continued to be inserted in decrees. See decrees referred to in Parkinson v. Ingram, supra. Miller v. Stephens, Appendix (4.) And it is now settled that after a decree, witnesses may be examined by the Master, Parkinson v. Ingram, supra. This direction continues to be inserted in decrees

C

of the Court of Exchequer; (see directions in Exchequer, No. III. supra, and Duchy Court of Lancaster ;) but has been long disused in the Court of Chancery. See Sanford v. Biddulph, 9 Ves. 36.

In Parkinson v. Ingram, supra, the Master of the Rolls notices that he had found three decrees in the time of James II. in which the above direction was inserted, and that he had been furnished by Mr. Dickens with a decree in the reign of William III. in which the only difference was that the Master was to be at liberty to examine witnesses, and states that no other decrees were to be found. But see Miller v. Stephens, Appendix (4).

The same subpoena issues to compel the attendance of witnesses before the Master as before the examiner, (which is the same as the subpoena to answer), but the label explains the purpose where the examination is in town, and the body of the subpoena where it is in the country. Parkinson v. Ingram, supra.

If the Master sees cause to direct a commission to the country, he does not direct it, but certifies that it is necessary. S. C. For Certificate, see Hand's Pract. 262. 2 Turn. Pract. 77.

An exception does not lie to this certificate, but a motion may be made to discharge the order for a commission. Chaffen v. Wills. 1 Dick. 377.

Upon the certificate of the Master that a commission is necessary, it issues of course. Sanford v. Biddulph, supra.

For orders for a commission to examine witnesses before the Master. See Hand's Pract. 135, 136.

But without the Master's certificate the order for a commission is irregular. Bearcroft v. Berkley, 2 Cox, 108,

For a commission to examine witnesses under a decree in the Exchequer. See 2 Fowl. 285.

The depositions taken under a commission are to be filed in the Six Clerks' Office. Parkinson v. Ingram, supra.

Those taken before the Master are to be kept in his office, S. C. So the examinations of parties taken under a commission are to be filed in the Six Clerks' Office. Dyott v. Anderton, 3 V. & B. 177.

note.

Interrogatories.

Where witnesses are examined before the Master, the interrogatories are not settled by him. Willan v. Willan, Cooper, 293. But see S. C. 19 Ves. 593.

So where the Master certifies that a commission is necessary, the interrogatories are not settled by him. Anon. Ex relatione, Mr. Tinney.

Publication.

In Shepherd v. Collyer, cited 3 Ves. 608. semble, S. C. cited 19 Ves. 594. it was stated, that in depositions before the Master publication did not pass. But in Willan v. Willan, 19 Ves. 591. note. S. C. Cooper, 291. this was denied at the bar. And in that case it was held, that whether publication took place in form or not, after an examination under the decree was concluded and made known, further examination would not be permitted, except under special circumstances. And see Shepherd v. Collyer, supra. And in Handley v. Billinge, 1 Sim. 511. it was certified by three clerks in court, that where witnesses are examined after a decree, before the examiner or under a commission, an order must be obtained for passing publication, unless it is passed by the consent of the clerks in court; but that where witnesses are examined by the Master, publication passes by his warrant; and the Vice-Chancellor made an order accordingly.

Re-examination of Witnesses before the Master.

A witness who has been examined in the cause cannot be reexamined by the Master without the leave of the Court. Cowslade v. Cornish, 2 Ves. 270. S. C. 1 Dick, 149. Browning v. Barton, 2 Dick, 508. Sawyer v. Bowyer, 2 Dick, 639. S. C. 1 Bro. 388. Vaughan v. Lloyd, 1 Cox, 312. Smith v. Althus, 11 Ves. 564. Willan v. Willan, 19 Ves. 592. Though he was interested at the hearing, and therefore incompetent. Sandford v. Paul, 2 Dick, 750. S. C. 3 Bro. 370. 1 Ves. jun. 398. But see Callow v. Mince, 2 Vern, 472. In Medley v. Pearce, 1 West. 128. it was said by Lord Hardwicke, that, according to the strict rule, an order was necessary for the examination of a witness to matters of account before the Master, who had been examined to other facts before the hearing, but that the practice was otherwise. And in Swinford v. Horne, 5 Mad. 379. it was held, that the Master might, without an order, examine to different matters a witness who had been examined before a decree, but not to the same matters. And in Greenaway v. Adams, 13 Ves. 360. witnesses having been re-examined before the Master upon different interrogatories without an order, an order was made, not being