12 Vesey,391. Coopers cases 291. Newland Pract. 161. 171. Ibid. 175. and 18. Vesey, 287. examination of parties or witnesses, but he did not conceive it indispensable; that the practice of oral examination had gen erally prevailed here.” He then states the practice to be ob served here, thus, "That the proofs be taken on written interrogatories approved by the Master, or by viva voce examination, as the parties shall deem expedient, or the Master shall direct." The Chancellor plainly means by the word" proofs” the examination of the parties, as well as the testimony of witnes This clearly appears from other parts of his opinion. ses. If the decree therefore is general, "That the Master may examine parties," or, "examine them upon interrogatories, or otherwise," the mode is in his discretion. The English books furnish nothing of the course of practice upon an oral examination; but that, upon written interrogatories, will by analogy, supply the rules. I shall therefore trace out that practice first. The interrogatories must be settled by the Master; that is judged and formally approved of by him. 66 Interrogatories for the examination of parties are settled by the Master, though they are frequently prepared by the solicitor or counsel." This rule implies that interrogatories may be framed by the Vol. 1. page Master, and accordingly in Turner's Practice, is a set of standing interrogatories, settled by Master Harvey, for the examination of executors in his office: They need not be signed by counsel. See Appendix No. 8, for the form of interrogatories. The interrogatories being prepared, a copy is served, with a summons, underwritten, "to settle the interrogatories left by the for the examination of the It was before observed that a notice accompanying the copy served, was useless. On the return of the summons, the Master, upon attendance, or an affidavit of the service of the summons, and a copy of the interrogatories, will consider them. t Turner, 176. Paxton . ner, 168. n. 99 If the party objects to any of the interrogatories, and the objection appears upon the face of them, it may be discussed at once. If the objections arise from extrinsic matter, the party must bring that matter before the Master by a state of facts. "Thus, on a bill filed by creditors, on behalf of themselves and others, Christie claimed to be a bond creditor. Interrogatories were filed for his examination before the Master, inquiring as to the consideration of the bond, whether it was not given for the purchase money of the command of an East India Company ship, sold by Christie to Douglass, Christie brought in a state of facts before the Master, setting out a byelaw of the company.-That a commander, selling his command, should be rendered incapable of future employ; that the ship might be discharged, and the parties should pay damages to the company, at the rate of double the sum received or paid, and clauses to such effect should be inserted in all shipping agreements. On the ground of these penalties, he objected to auswer." 176. 5 Edi For the same reason as in the case of interrogatories; the opposite party must be served with a copy of the state of facts, by the solicitor, and a summons taken out underwritten. "To 1 Turner, proceed on the state of facts left by A. B." On the return of tion. this, the objection is discussed. The Master having determin- Ibid. ed upon the interrogatories, signs an allowance at the foot of See Appendix, No. 7. the ingrossment. It is stated in all the books of practice, that 1 Turner, the Master gives a certificate of his allowance of the interrog-an atories, which is filed in the report office, (of course here, with Blake, 234. the register.) 177. New Fowler's Such is the course of practice laid down in the books. There 293. is however an early rule revived by a late decision, which appears to me to warrant a beneficial change in it. It is now fully settled that exceptions will not lie to the certificate of allowance of interrogatories. The cases upon this point are these : Stamsford v, The Master having certified, he had settled interrogatories Tudor, Dicks for the examination of the defendant, the defendant took ex- ens, 548. ceptions to the report, that they led to matters not in issue. It was argued, that excepting to a Master's certificate of his having settled interrogatories, was new in practice; and the Master was the proper judge of the propriety of the interrogatories. Lord Thurlow directed the Register to attend Sir Thomas Sewall, Master of the Rolls, on the subject. His Honor was clear the Master must settle the interrogatories; that the party was to put in such examination as he thought proper. If not sufficient, it would be referred, and the Master would report his opinion, and to this report either side might take exception; and the court, then having the interrogatories and examination before it, would determine whether the examination was sufficient or not. On making known to his lordship, what his honor had said, his lordship was clear, this was the proper course of proceeding." It appears however, that the practice subsequently did not follow this decision. "The plaintiff was to be examined upon interrogatories, which were settled by the Master. A petition was presented to expunge certain parts as impertinent. Lord Chancellor said,-He had no doubt, exceptions would do; but it was very questionable whether it could be done by petition. And afterwards that he was quite satisfied the proceedings upon the impertinence of interrogatories may be by exceptions, which were filed accordingly." The case of Paxton v. Douglass, overruled this practice, and restored that in Stamsford v. Tudor. "Exceptions were taken to the Master's certificate, of having settled interrogatories for the examination of a bond creditor coming in under a decree, and Lord Elden cited Stamsford v. Tudor, and said,—My opinion at present is, that the objection is not to putting the question, but to answering it, when put; that the witness is before the Master precisely in the situation of a witness called to give his evidence personally, for the objection is not to the question, but to the answering it. I therefore think that the interrogatories must be put to the witness, and it must be left to himself whether he will answer them or not." His Lordship afterwards said, "The exception should be, not to the propriety of the interrogatories, but to the Master's certificate of what he does after interrogatories are addressed to the witness. Exceptions disallowed." Afterwards the defendant put in his examination, which was referred and certified insufficient. An exception was taken to this certificate and allowed. Athough Lord Elden uses loosely the term witness, yet it is clearly the case of a party, or as Lord Hardwicke calls a creditor coming in, quasi a party. He was to be examined to his own claim. Mr. Turner cites this case as overruling Hughes v. Williams. This practice is decidedly preferable. It is least dilatory, and will in many cases prevent two references. Thus after a certificate of settling the interrogatories had been excepted to, and their propriety determined by the court, the examination might be referred for insufficiency, and the report upon that excepted to, and carried before the court. But if the practice of Stamsford v. Tudor, and Paxton v. Douglass, is established, every point whether the interrogatories are objectionable and need not be answered, or the examination is full and sufficient, may be settled on one reference, and one hearing before the court. These decisions have led me to conclude, that a part of the course of practice upon this subject as before detailed has been rendered useless, and should be altered: And such alteration would be very benefi ial. Не The summoning of the opposite party to attend upon settling the interrogatories, and the discussion of objections to If he aptheir propriety at that time is wholly unnecessary. pear and discuss them, and the Master's judgment is against him, he has then no remedy by applying to the court must put in his examination, in which undoubtedly he will take the same objections, or refuse to answer, relying upon them. Then the subject is to be again brought before the Master upto on a reference of his examination, and upon t report carried before the court. All that is obtained is a double discussion before the Master, undoubtedly not important enough to justify the additional delay and expense. It certainly may be pre- Pr. 293. sumed in the first instance that the interrogatories are proper, when a Master has allowed them. His settling them is a substitute for the signature of counsel. It is the security which the court takes instead of a counsel's hand, against the impertinence, scandal or prolixity of the paper, and it is done by the Master, because he is to judge whe ther any interrogatories are proper; whether it is necessary to examine the party at all. I feel therefore great confidence in the opinion, that the court would sanction the course of procuring the Master to settle interrogatories without any summons to the other party, and serving a copy when settled, The together with a summons to bring in his examination. objections to answer the interrogatories, or any of them, may be stated in the examination, in the same manner, as a ground of defence against answering is set forth in a plea or answer; or upon a reference for insufficiency it may be shewn that they are immaterial or improper, as upon a reference of an answer. For the form of such an examination, see Appendix, No. 12. It appears to me also, that since the decision, that exceptions will not lie to the certificate of allowance of the interrogatories, that certificate may be dispensed with, and the costs What pur(of attending, drawing and filing, &c.) be saved. pose can it serve, unless it can be the mean of bringing the interrogatories before the court? In case of a default indeed in putting in the examination, it is necessary that the court should be informed by the Master that he has settled the interrogatories; but this may as well be made part of the certificate of default, as stated in a separate one. If indeed the interrogatories are impertinent and scandalous, there can be no objection to the parties referring them as he 2 Fow. Ex. H 1 Turner. Newland, 161, 162. 1 Turner, Sol. Ass. 138. may any other pleading or proceeding in the court. A discharge has been referred for impertinence. But allowing that step to be taken by a party, at the risk of considerable costs, is very different in principle from requiring that in every case the delay and expense of a discussion before the Master, or a meeting at least upon the interrogatories, should take place. After the interrogatories are settled, the party is summoned to bring in his examination by a warrant, underwritten, "at which time the defendants are to bring in their examination, to the interrogatories settled by the Master." It appears that in England, he may apply during the running of the first warranty for a copy of the interrogatories as settled. With as the copy should be taken from the Master by the solicitor filing the interrogatories, and served with the summons. The Master ought to examine and subscribe his allowance on the copy to be served. If the defendant has attended with his copy of the interrogatories, it may be marked allowed by the Master, after the alterations made, if any. If no alterations are made, there can be no doubt, that it would be needless to serve a fresh copy. The underwriting of the summons to bring in the examination, might, in such case, run, " to bring in the examination, &c. to the interrogatories settled by the Master, being the interrogatories heretofore served." Of course, if the practice suggested should prevail, the copy of the interrogatories as settled would be the only copy served, and served with the summons to bring in the examination. The Master may give the party a reasonable time to bring 177. Hand's, in his examination, or if refused, the court may be applied to. If default is made in putting in the examination at the limited time, an affidavit must be laid before the Master of the service of the summons, and of a copy of the settled interrogatories. Upon this the Master will give a certificate that the examination is not put in. For the form, see appendix, No. 9. Hand's Sol. note. 1 Tur- If the party has procured time from the Master, and then is in default, the affidavit of service is not made, but the certificate states the attendance and time given. Upon this certificate the court is applied to for process against the party to procure the examination. The English practice to effect this is the same as where the party is in default, in not producing books, which was before stated. The first order is, upon a motion of course, that the defendants put in their examination within four days after personal notice of the order to their clerk in court, or in default, that |