opposed, to receive their depositions. But in Smith v. Graham, 2 Swan. 265. the deposition of a witness, who had been previously examined, though to different matters, was suppressed; but leave was given to re-examine him. A witness who has been examined to prove exhibits before the hearing, may be re-examined before the Master, to prove other exhibits without an order, Courtenay v. Hoskins, 2 Russ. 253. In Browning v. Barton, supra, the order directed that the witnesses were not to be examined to any matter they had been before examined to. But it seems that this direction is improper. See Vaughan v. Lloyd, supra. The Court, however, directs the interrogatories to be settled by the Master, who, in so doing, will take care that the same witness is not a second time examined to the same facts. Vaughan v. Lloyd, supra. and see Smith v. Graham, supra. Sandford v. Paul, supra. Unless he has been merely examined to prove exhibits. Birch v. Walker, 2 Sch. and Lefr. 518. and see Vaughan v. Lloyd, supra.

Examination of Parties as Witnesses.

Previously to the decree, a plaintiff may examine a defendant as a witness, saving just exceptions. Gilb. For. Rom. 139. Man v. Ward, 2 Atk. 229. And see Barrett v. Gore, 3 Atk. 401.

So a defendant may examine a co-defendant, saving just exceptions. Gilb. For. Rom. supra. And see Piddock v. Brown, 3 P. W. 288.

The order usually proceeds upon a suggestion that the party has no interest. Gilb. For. Rom. supra. And see Murray v. Shadwell,

2 V. & B. 401.

In Anon. 18 Ves. 517, the Lord Chancellor seemed to think that if the suggestion was not founded in fact, the objection might be taken before the hearing.

But in Lee v. Atkinson, 2 Cox, 413. it was held that the suggestion was not essential to obtaining the order; and that the objection could not be taken before the hearing. And see Murray v. Shadwell, supra. Gilb. For. Rom. supra.

The order is not of course after replication. Winter v. Kent, 2 Dick. 595.

Nor à fortiori after a decree, but leave may be obtained. Franklyn v. Colquhoun, 16 Ves. 218. Purcell v. M'Namara, 17 Ves. 434. Hougham v. Sandys, 2 S. & S. 221.

The plaintiff, notwithstanding his having examined a defendant as

a witness, may obtain a decree against him as to other matters. Nightingale v. Dodd, Ambl. 583.

A plaintiff cannot examine a co-plaintiff as a witness. Phillips v. Duke of Buckingham, 1 Vern. 230. Mayor of Colchester v.

1 P. W, 595. And see Hewatson v. Tookey, 2 Dick, 799. Benson v. Chester, Jac. 577.

But an order may be obtained for striking out his name as a coplaintiff, and making him a defendant, for the purpose of examining him as a witness, upon giving security for costs. Motteux v. Mackreth, 1 Ves. jun. 142. Lloyd v. Makeam, 6 Ves. 145. Campbell, 12 Ves. 493.

And the order may be obtained after replication. Mackreth, supra.

Witts v.

Motteux v.

But not after a decretal order. Benson v. Chester, supra.

Liberty has been given to a defendant to examine a plaintiff as a witness. Armiter v. Swanton, Ambl. 393. Troughton v. Getley, 1 Dick. 382.

But the latter case has been reprobated. See Hewatson v. Tookey, supra.

Nevertheless leave may be obtained, if the plaintiff consents. Walker v. Wingfield, 15 Ves. 178.

Leave may be obtained by a defendant for the examination of a prochein ami. Bird v. Owen, Mos. 312.

Examination vivá voce.

By Lord Lyndhurst's orders, 69. 2 Russ. (Appendix) 23. It is ordered, that the Master have power, at his discretion, to examine any witness vivá voce, and that in such case the subpoena for the attendance of such witness, shall, upon a note from the Master, be issued from the subpoena office; and that the evidence upon such vivá 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.

By Lord Lyndhurst's orders, 72. 2 Russ. (Appendix) 24. It is ordered, that the Master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written. interrogatories or vivá voce, or in both modes, as the nature of the case may appear to him to require, the evidence upon such examination being taken down at the time by the Master, or by the Master's

clerk, in his presence, and preserved, in order that the same may be used by the Court, if necessary.

Affidavits.

And

Upon a reference to the Master under a decree, affidavits can only be received by the Master by consent. See Willan v. Willan, 19 Ves. 593. But if the Master receives affidavits, and they are not objected to on the other side, the report cannot be objected to on the ground that the witnesses ought to have been examined upon interrogatories. Morgan v. Lewis, 1 Newl. Pract. 333. note. see Mr. Bell's Evidence, Chancery Report, Appendix A. p. 241. In a reference on a question of legitimacy, the Master was directed not to proceed upon affidavits (which had been obtained from America) with liberty, under the circumstances, to apply to the Court, if by death or otherwise it became impossible to obtain, under a commission, the evidence of the persons who had made the affidavits. Tillotson v. Hargrave, 3 Mad. 494.

In a reference upon a motion in a cause, affidavits were received by the Master, upon the principle, that where the reference is made in a stage of the cause in which the Court proceeds upon affidavit, the Master may do the same. Sonnet v. Powell, Ex relatione Mr. Tinney.

Where the matters referred to the Master originate in motion or petition, the Master proceeds by affidavit, 1 Newl. Pract. 333. As on a reference under the statute 52 Geo. 3. c. 101. Greenhouse, 1 Swan. 60.

So in Bankruptcy and Lunacy. Ib.

Ex parte

Upon a reference to the Master in Bankruptcy, affidavits which might have been read on the hearing of the petition, may be read before the Master. Ex parte Jackson, 1 Rose, 45.

By Lord Lyndhurst's orders, 65. 2 Russ. (Appendix) 23. It is ordered, that all affidavits which have been previously made and read in court, upon any proceeding in a cause or matter, may be used before the Master.

By Lord Lyndhurst's orders, 66. Ib. It is ordered, that where, upon an inquiry before the Master, affidavits are received, there no affidavits in reply shall be read, except as to new matter which may be stated in the affidavits in answer; nor shall any further affidavits be read, unless specially required by the Master.

APPENDIX (1).

Order for Inquiry as to the Effect of Law in Scotland.

This court doth order that it be referred to Mr. S., one of the Masters of this court, to enquire and state to the court whether the proceedings of the defendant in Scotland will, by the law of Scotland, be followed by any consequences which are in contravention of the trust deed in the pleadings mentioned, with liberty to the said Master to state any special circumstances relating thereto as he shall think fit; and in the mean time it is ordered that the injunction granted in this cause be continued. And after the said Master shall have made his report, such further order shall be made as shall be just. Campbell v. Houlditch, V. C. 19th December, 1820. Reg. Lib. A. 1820, fol. 594.

APPENDIX (2).

Direction for Production limited.

And for the better taking of the accounts before directed, the parties are to be examined upon interrogatories, and produce before the said Master upon oath all books, papers and writings in their custody or power relating thereto, asthe said Master shall direct, who in taking the said accounts is to make unto the parties all just allowHargrave v. Richardson, 9th July, 1753. Reg. Lib. A.

ances.

1752, fol. 566.

So in Plunket v. Penson, L. C. 3d April, 1742. Reg. Lib. B. 1741, fol. 228. Howarth v. Powell, L. C. 4th July, 1743. Reg. Lib. A. 1742, fol. 660. Ellison v. Airey, L. C. 13th July, 1748. Reg. Lib. A. 1747, fol. 699.

APPENDIX (3).

Order for leave to inspect Books of Bank, &c.

Upon consideration this day had by the Right Honourable the Master of the Rolls, of the humble petition of the defendant Scott, setting forth, that the plaintiff, having filed her bill in this court against the petitioner, in relation to several parcels of South Sea Annuities, and South Sea Stock and Bank Stock, which formerly belonged to Sir N. W. and D. W. deceased, the father and sister of the plaintiff, the petitioner is advised to prove that the said stocks were transferred by the said plaintiff and the said Thomas Whorwood, her said husband, during her coverture, to or to the use of the said Thomas Whorwood, whereby he became possessed thereof in his own right; It was therefore prayed, and it is accordingly ordered, that the petitioner

Cecilia Scott and her Solicitor be at liberty to inspect the books of the South Sea Company, and of the Company of the Bank of England, so far as they relate to the matters in question in this cause, and to take copies thereof as she shall be advised, at her own expense, of which notice is to be given forthwith. Whorwood v. Scott, M. R. 29th June, 1748, Reg. Lib. B. 1747. fol. 378.

[The bank, &c. were not parties.]

So in Lethieuller v. Tracy, L. C. 9th August, 1748, Reg. Lib. B. 1747, fol. 450.

APPENDIX (4.)

Direction for a Commission to the Master for the Examination of Witnesses.

For which purpose, and the said Master's better proceeding in the said account, he is to be armed with a commission for examination of witnesses as he shall see cause. Miller v. Stephens, Lord Keeper, 25th April, 1670, Reg. Lib. B. 1669, fol. 507.

No. IV.

LIBERTY TO STATE SPECIAL CIRCUMSTANCES. And the Master is to be at liberty to state any special cir

cumstances.

NOTE.

By Lord Clarendon's orders, Beames, 208. the Masters are not to return special certificates to the Court unless they are required by the Court so to do, or that their own judgment in respect of difficulty leads them to it. And see Lord Coventry's orders, 19. Beames, 80. Lord Bacon's orders, 49. Beames, 23.

In decrees for account the Master may state special circumstances, though there is no direction for that purpose in the decree, Anon. 2 Atk. 620. So the Master may state his reasons for disallowing a claim. Champernowne v. Scott, 4 Mad. 209.

And see Decrees for Account, post.

In decrees for account in the Exchequer, there is a direction for liberty to the Master to state special circumstances. See Directions in Decree in the Exchequer, No. III. ante.