In Hougham v. Sandys, 2 S. & S. 221, permission was given to defendants after decree, to examine a plaintiff as a witness, the Master having certified the necessity of so doing, and the plaintiff having no beneficial interest in the property in dispute. The interest which a plaintiff has, from his liability to costs, usually prevents his examination under any circumstances.

EXAMINATION OF WITNESSES VIVA VOCE.

By the 69th N. O. power is given to the Master in his discretion to examine any witness vivâ voce; and in such case the subpoena for the attendance of the witness is, upon a note from the Master, to be issued from the Subpoena Office; and the evidence upon such vivâ voce examination is to 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. And by the 72d N. O. the Master is at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or vivâ voce, or in both modes, as the nature of the case appears 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.

The order to examine a witness vivâ voce does not confer a new power on the Masters. Before the Orders of 1828, the Masters were at liberty, after a decree, to examine witnesses, and a subpoena, similar to that issued to bring them before the examiner, was sued out. Parkinson v. Ingram, 3 Ves. 603. This practice is recognized in a certificate given by the clerks in court, in Handley v. Billinge, 1 Sim. 511.

The power of examining witnesses vivâ voce before the Master, by whom the inquiries are directed to be answered, may be often attended with much benefit, and a great saving of expense. Where the proof is simple, or the Master's judgment ought to be final, no practice can be more conducive to the ends of justice; but if the discretion vested in the Master should be exercised generally, and the examination of witnesses vivâ voce before him should, after decree, become the ordinary mode of taking the evidence of witnesses residing near London, it would undermine the foundation of every principle of evidence, and render the precautions, with which the experience of ages has guarded against perjury, a useless formality. Sir Samuel Romilly said, "One of the most sacred rules, applying equally to examinations before the decree, and afterwards before the Master, is, that where an examination is taken upon interrogatories, and not, as it can only be by consent, upon affidavits, one party having seen all the proofs on the other side, shall not be at liberty to go into evidence, for the purpose of meeting and adapting his case to that which is before him, and sworn to;" and added, "that the rule is never dispensed with, except upon affidavits by the party and his solicitor, that they have not seen the depositions." Willan v. Willan, 19 Ves. 596.

In examining vivâ voce before the Master, the name of the witness is furnished to the opposite party, by being underwritten on the warrant taken out previous to his examination. On the return of that warrant, the witness delivers his testimony before the Master, in the presence of the solicitors or their counsel, and also in that of the parties themselves, if they please. When the witness has finished his examination, a copy of his evidence is furnished by the Master's clerk to any of the parties, who are then at liberty

to go and seek out as many witnesses as they can, to contradict the evidence already taken.

If, after a decree, a mode of examination were sanctioned which permitted the reception of further evidence, after the depositions of one or more witnesses had been made known, for what purpose are the ancient fences against tampering with witnesses preserved? Why, on the application to enlarge publication before decree, if a witness has been examined, is an affidavit of the party, of his solicitor, and his clerk in court required, that they have not seen or been informed of the contents of the depositions ?-or why should the Court be so jealous of permitting the re-examination of witnesses? Every principle of the Court is against the general application of an examination before the Master vivâ voce, and the more sparingly the discretion is exercised, the more it will be found to accord with the principles of the Court. Another serious objection to a vivâ voce examination is, that only the answers of the witness, and not the questions put to him, are taken down. If the Master's judgment was final, the benefits of a vivâ voce examination would be felt; but in case of the report being excepted to, the evidence comes before the Court less effectively, for the reason last mentioned, than when taken by the examiner.

If a party wishes to examine a witness vivâ voce, he must take out a warrant for that purpose. This warrant is underwritten, "To examine A. B. vivâ voce before the Master," and is served on the clerk in court of the opposite party. If the witness is unwilling to attend, he should be served personally with a copy of the subpoena, and a copy of the Master's warrant to testify. The subpoena is obtained at the Subpoena Office, in the usual manner. If the witness is willing to attend, a notice of the appointment is sufficient. At the return of the warrant, the parties attend the Master, together with the witness; the party calling the

witness examines, and the opposite party cross-examines him, and the Master puts such questions as he thinks proper. The questions are not put from written interrogatories previously prepared, but such as suggest themselves. The answers, but not the questions, are taken down by the Master. When the examination is completed, the clerk of the Master furnishes, to such of the parties as may apply, copies of the evidence.

The Master is not at liberty to examine a witness vivâ voce, after he has issued his warrant on preparing his report; and having done so, the depositions taken under such examination were on motion ordered to be suppressed. Trotter v. Trotter, 5 Sim. 383.

EXAMINATION OF WITNESSES AFTER DECREE, BY THE EXAMINER, AND BY COMMISSION.

The examination of witnesses, after a decree, is taken by the examiner, in the same manner as before a hearing. The witnesses are examined upon written interrogatories, prepared and signed by counsel. These interrogatories are not settled by the Master, like those for the examination of a party, but are simply marked by him as coming from his office. The interrogatories are copied on unstamped parchment, and left with the examiner; the appointment for the witnesses, and the process to compel their attendance, and the manner of examining them and procuring copies of the depositions, are in every respect similar to those before decree. The only distinction exists in the manner of passing publication, which will be explained hereafter.

If the witnesses or witness reside or are twenty miles from London, the party desirous of examining must apply to the Master for a certificate of the necessity for a com

It

mission. If the Master thinks the examination of the witnesses necessary, he never refuses his certificate. appears that it was the old practice to insert in the decree a power for the Master to examine witnesses. Sandford v. Biddulph, 9 Ves. 36. But such direction is never inserted in modern orders, and the Master is authorised, under the general powers of the decree, to issue such certificate. In Sandford v. Biddulph, 9 Ves. 36, the Master entertained a doubt as to his authority on this point, and a motion was made to authorise him to grant the certificate. The Court was satisfied of the Master's authority, and of his power to certify that a commission was necessary.

The Master's certificate is filed, and an office copy taken; upon which the party applies upon a petition, or motion of course, for an order for a commission for the examination of his witnesses. The order is drawn up accordingly. The commission is made out by the clerk in court, (who calls upon the other party to join,) and is executed, and the witnesses are summoned in the same manner as before decree, and as explained when treating on that subject. The depositions are returned, with the commission, to the Six Clerks' Office, and copies of the depositions are furnished by the respective clerks in court of the parties, after publication has passed.

PASSING PUBLICATION.

By the practice of the Court before the Orders of 1828, the time beyond which evidence could not be received by the Master was not accurately settled. In Thompson v. Lambe, 7 Ves. 587, it was held, that evidence could not be received by the Master after he had settled his report; but I do not think that such a practice was universally followed. By the 67th N. O. it was directed that the Master