44 11 Vesey, $85. Hough . 190. On the other side, in Smith v. Althas, Lord Elden said,"As to the examination before the Master of those witnesses, who were examined in the cause, there must be an application for leave to examine them, but as to persons who were not witnesses in the cause, they may be examined before the Master to the same points." "Bill to set aside securities obtained from the plaintiff by the defendant. The bill charged that the articles, for which the securities were given, were sold at prices far beyond their real value, Edit. & note. and stated the loss sustained by each particular sale, and the See Belt's Anté. plaintiff had given evidence of this, but the defendant had entered into no proof as to it. Mr. J. Buller, sitting for the Lord Chancellor, had made a decrec, that the Master should take an account of what the articles were really worth at the times of their respective sales, and that the securities should stand for so much only as was reported. Upon the reference, the defendant offered to exhibit interr gatories for the examination of witnesses to prove the real value; but the Master refused to receive them, on the ground that the point had been expressly put in issue in the cause, and the defendant might therefore have examined witnesses to this point in the cause. It was moved on the part of the defendant, that the Master might be directed to receive these interrogatories. And the Lord Chancellor, said,-He could not conceive how the Master could doubt about it; for the decree implied, that the Master was to receive evidence as to the value, and directed the Master to certify the reasons on which he refused to receive the interrogatories." Transposing the plaintiff and defendant, this case is precisely that of Willan v. Willan, and the decisions are directly at variance. It appears to me that those cases of Willan v. Willan, and Shepherd v. Collyer give the proper rule for the government of the Master, and render a special order requisite. The leading principle of the court in the examination of witnesses is, that no part of testimony should be disclosed till the whole is taken; that the parties may not have the advantage of knowing the evidence of their own or their adversary's witnesses, to amend or meet it. So long as the court abides by this doctrine, it cannot allow a rule, which would completely defeat it in every case, which, must go eventually before a Master. The court may under special circumstances, admit of the examination, but the Master without its direction, cannot. Nor does the direction of a decree to take an account of the val we of articles appear to me sufficient authority, or the reasons of the Lord Chancellor very satisfactory. These matters are sent to the Master, merely from the habit of the court of relieving itself from the labour of making estimates or computations; whether these can be made from the evidence already before the court, or that further testimony is requisite. In Hough v. Williams, for instance, the decree to take an account of the value of the articles, was a matter of course, and would have been made, if all possible testimony from both parties, bad been before the court. I do not see therefore the force of the argument, that by a direction to make enquiries as to value where some materials of judging are given by the testimony, the permission to take further testimony is implied. It is probably on account of this difficulty that clauses are frequent in decrees, that the Master take such further evidence upon the matters as either party may produce. If these There are some obvious principles applicable to this point which would influence the court in allowing or refusing such an examination. Suppose a party in possession of an estate under a contract, giving him various items of allowances, and prohibiting others that he is called to an account of the value of articles appropriated in violation of the contract. matters were distinctly put in issue in the pleadings, and one party had fully and minutely examined to them before hearing, and the other neglected it, ought he to be permitted to examine to them subsequently? This would be giving great opportunities for the fabrication of testimony, or the tampering with wit nesses. There is another class of cases, viz. those in which the fact has been touched upon in the interrogatories and depositions, but in so slight or imperfect a manner, that the testimony cannot afford a ground of conclusion. The party who has examined may not have exhausted his witnesses, and the advantage to the opposite party is therefore less. In such cases the court would be inclined to allow the subsequent examination. So the matter may be a plain naked fact on which there can be no nicety of evidence, but a positive and distinct answer can be given. But all these considerations shew that the subject is more fit for the determination of the court, than the Master. The former can best decide, from the state of the pleadings, the fulness or nature of the testimony, and the character of the enquiry, whether a further examination to the same matters shall be permitted. 4th. The fourth case is, where the proposed witness has been examined before the hearing, and to the same facts to which his testimony is required to be taken by the Master. 392. Maddocks, 1. It is said generally in the books, that the witness cannot be examined to the same facts to which he had been before examined, and that this is made part of the order. Dickens, 508. 1 Coxe's Cases, 312. Birck v. Sch. and The latter clause rests upon the decree of Lord Bathurst in Browning v. Barker, who on a special motion to examine a witness, examined previous to the hearing, made it part of his order," that the witnesses were not to be examined to any matter, which they had before been examined to." I think however, that Lord Thurlow, with his usual discrimination on points of practice, has pointed out the true distinction in this case, and properly qualified the generality of this language. In Vaugham v. Lloyd, as before stated, the witnesses had been examined before the Master to different facts, from those they were examined to before the hearing; and the depositions were suppressed. Lord Chancellor added." Let the witnesses be examined again upon interrogatories, to be settled by the Master; but I will not insert in the order any direction that they shall not be examined on the same points, for that the Master will take care of. Such a direction was inserted in the order in Browning v. Barker, but I much doubt whether it was proper. Suppose the witness had been examined in the cause on a more general interrogatory, under which he might have deposed to the point required, but did not; and a more particular interrogatory was exhibited to get at his testimony; should think the Master would do right in admitting it. The matter is therefore to be judged of by the Master, and if his judgment is erroneous, you may then come here to have it rectified." "If a witness has been examined in chief in a cause, he canWalker, 2 not be examined again to the account before the Master, withLefroy, 518. out special order, and the interrogatories being settled by the Master, to prevent his being examined to the same matters, to which he has been examined in, chief. If he has merely been examined as a witness to a deed or some such matter, the interrogatories need not be settled by the Master, as it is evident then, that he is not to be examined to the same matter." 5th. The fifth case is an examination by a Master of a witness who has been once examined before him. Anon. 2 Ch. Remsen v. John. C. C. "The Master examined one witness three times to the matter of account. Ordered that the depositions be suppressed." "A witness once examined before the Master, cannot be re-examined without an order." The Chancellor cites, 2 Maddocks, 392. & 2 Vesey, Sin. 270. Mr. Maddocks cites 2 Vesey, 270 only. That is the case of Cowslade v. Cornish, cited before; under title of Cornish v. Acton, from 2 Dickens. Lord Hardwicke there, after saying that the Master might examine a defendant as often as he chose, and a new order was not necessary, added,—" It is so indeed in case of a witness; for that is different. If a witness is once examined, it might be dangerous without an order, to let him be examined again; but that is from the danger of drawing in a witness, when it is known, what he has sworn to." In this case also the rule ought to be understood with the qualification that the Master is only precluded from re-examining to the same facts once deposed to, without an order. The case in 2 Chan. Cases, appears to have been a re-ex- 2 John. C. amination to the same facts. Lord Hardwicke must have C. 501. meant such an examination from the reason he gives; and so it is understood by Chancellor Kent, who says in a subsequent passage, "An order seems to be requisite when a witness once examined, is sought to be again examined before the Master on the same matter." 2. The second subject of consideration is, the mode of procuring the testimony of witnesses; comprising 1. The mode of bringing them to an examination. 2. The manner of taking that examination. The first head varies in three different cases. 1. Where the witness resides within the county where his testimony is to be taken. 2. Where in a different county of the State. 3. Where in another State, or a foreign country. 1. It is a usual practice of our Masters to issue a summons in the nature of a subpoena, requiring the witness to appear and testify what he knows in the matters in reference, &c. is signed by the Master. This Undoubtedly however, an attachment could not be supported against a witness disobeying this summons. It is a principle to which I know but one exception, (a subpoena from the sessions, that a party shall not be brought before a court, but by writ under seal. By the Constitution all writs must run in the name of the people of the state of New York, and be tested in the name of the Chancellor or chief Judge. Art. 31. By statute all writs and process of the Court of Chancery, 1 R. L. 487. shall be scaled with one of the seals. Rule 21. Wardel v. Hind's Pract. 337. Rule 21. One exception to the general rule is made by statute, providing that no seal is requisite on a subpœna from the general sessions of the peace, but that it may be signed by the prosecuting officer; and thus confirming the necessity of a seal in every other case. Upon issuing a commission to examine witnesses, a subpœna is taken out, and a memorandum signed by the commissioners is left with the witness. When it is to bring a witness before the examiner, the day and place is specified in the writ. The party is indeed brought before a Master by a summons, and may on application be committed for default; but this is by the unexpired force of the original subpoena to appear and answer, by which, being brought into court to do and receive what it shall consider in that behalf, he contemns that original command as much, by neglecting to appear before the Master, pursuant to the order of the court, as if he had disobeyed it in the first instance. A witness is not bound to attend upon a commissioner's summons, and that of a Master is not of higher authority, "Phipps and others, being served with a commissioners summons to attend and be examined, neglected it; whereupon an order nisi was obtained that they should attend at their own expence before the Examiner and be examined. On their shewing for cause, that they had not been served with a subpoena ad testificandum, bu only with a summons, Lord Hardwicke discharged the order." "No process of contempt lies upon disobedience of the Commissioners summons, no writ under seal being directed to the witness." The form of the subpoena used by the clerk in New York is given in the Appendix, No. 22. It is framed by analogy to that used to bring the witness before the examiner, specifying the time and place in the writ. And the form of the ticket left with the witness on the service is also given. There can be no doubt, that where the Master resided in a distant county, the court would sanction a subpœna, framed like that used on a commission under the 21. rule, requiring the witness to attend at such time and place as the Master should appoint, and leaving the names blank. A memorandum in writing of the time and place, signed by the Master, should be left with the witness, and the writ shewn to him. If the witness refuse or neglect to attend, or be examined, the court must be applied to. |