reduce every thing to writing in the first instance, because in the progress of the account new items might arise.

It is singular that this Gentleman should have fallen into this error. There is nothing to prevent a party bringing before the Master other items of claim, omitted in his charge, whether by mistake, or subsequently disclosed. Every charge concludes with craving leave to add to or alter, as the party may be advised.

Pr. 2.277.

I feel great confidence in saying, that every one of experience in the Master's office, is satisfied of the great advantages of pursuing this course; the Solicitor makes himself Master of his whole case, as far as it is possible, at the beginning, instead of acquiring his knowledge, as the investigation proceeds. The Master is greatly aided-precision and accuracy are obtained, and full examination of every point is secured, Under a decree for an account both parties are actors, and ei- Fowl. Exch. ther may proceed before the Master in taking it. The defendant may therefore take out a summons for the plaintiff to bring in his charge, and if neglected, state what he admits against himself, or what appears from the proceedings in the cause, and go on with his own discharge. And in some cases, as bills filed by executors for directions and indemnity, the defendants are necessarily to bring in the charge. For the forms of charges, Fowler. See Appendix, No. 18. & 19. A charge is taken from the schedules and proofs in the cause, the examination of the defendant if previously examined, or from other sources within the party's power, and to be supported by new proof.

Whenever schedules are annexed to an answer containing a statement of the party's receipts, the repetition of them item by item in the charge, should not be allowed. It would certainly be sufficient to state generally, that the party should be charged with all the items set forth on such a side of such a schedule to his answer; and then proceed to specify the fresh items. For such a form, See Appendix, No. 18.

This regulation could be enforced by refusing costs for such part of a charge as was a mere repetition of the schedules.

On leaving the charge, a summons is taken out, which by our present practice if the master is to supply the copy may be underwritten,-"A. B. the above has left his charge," or, "to proceed upon the charge," where a copy has been served by thesolicitor. Of course the latter is almost always done.

2

On attending the Master, while the charge is under consid- 1 Turner, eration, the party supports it item by item, by shewing the 191. proof, either from the schedules to the answer, examination if any has been taken, or the proofs in the cause; or he exam

CAP. II.

SECTION 6.

WITNESSES.

3 Vesey, 603.

THIS subject embraces :

1st. When a Master may examine witnesses, and what wit

nesses.

2. The method of procuring their attendance and taking their testimony.

3. The correction of the Master's errors, in rejecting or admitting their testimony. The first head involves five distinct cases.

1. Where the examination proposed is of a witness not previously examined, to facts not examined to before the hearing. It was formerly usual to empower a Master specially to examine witnesses by arming him with a commission in the decree and in the Exchequer, the course still is to procure such a commission. Now however, the direction in a decree, also 9 Vesey, that certain inquiries be made, is a sufficient authority to the Master to examine new witnesses, to those enquiries.

Fowler's Ex.
Prac. 2. See

35.

Willan v.
Willan,
Cooper's.
Cases, 291.

Smith v.
Aldus, 11
Vesey, 564.

Lord Chancellor said, "That after publication passed pri or to a decree, and the depositions had been seen, it was quite clear that further witnesses could not be examined without leave of the court, which could not be obtained, but with great difficulty, and that to particular facts only. But when a decrée directs particular enquiries to be made, the court thereby in effect does give leave to examine witnesses as to the subject of the enquiries.

"A motion was made that the Master be directed to receive evidence which he had refused. (Which appears to have been evidence taken in the cause but not read at the hearing.)

Mr. Romilly in support said that a notion had got into the Master's office that they could only receive evidence that was read at the hearing, which could not be correct.

Lord Chancellor.-The danger of permitting further examination applies only to a re-examination before a decree, not to an examination before the Master afterwards, the object in directing the enquiry being to obtain further evidence. Where the court directs an enquiry 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."

2. The next case is, when the examination is to be of a witness examined prior to the hearing, but to different facts.

A special order is requisite to authorize the Master to take his testimony.

"Some of the witnesses who had been examined in this Greenaway cause were re-examined before the Master upon different inter- 12 Vesey, Jr. v. Adams, rogatories, but afterwards the Master conceiving that as 360. these witnesses had been before examined, they ought not to have been re-examined without an order, he directed that an application should be made to the court. The order was granted to authorise the examination."

312.

"Mansfield moved to suppress the depositions of witnesses, examined before the Master, on the ground, that they had been Coxes Cases, Lloyd, 1 before examined in the cause, without an order, which was against the practice of the court, whether the examination was to the same point or not. On the other side it was said, the rule only extended to the examination of the same person to the same facts, and could not be meant to include a witness, who might be examined in the cause, only to prove an exhibit,. but in fact might be the most material witness upon the merits before the Master.

The Lord Chancellor.-The first question is, whether in any case, a witness who has already been examined in the cause, can be again examined before the Master without leave of the court, and this is a dry point of practice. Now if the witness has been examined only to trifling points in the cause, or if in truth he knows more than he has already been examined to, it would most certainly be very hard to prevent the party from having the benefit of his testimony before the Master, But the question is, whether the court has not taken the precaution of making it necessary for the party in that case to apply for leave of the court? which leave it certainly will grant whenever the justice of the case requires it, but will put the party under terms of having the interrogatories approved and 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, not only to prevent the partics being loaded with unnecessary expence, and the cause with useless depositions, but what is a still greater object, to avoid the danger of perjury, which would be incurred by a witness deposing a second time to the the same fact, after having seen where the cause pinched, and how his testimony bore upon it.

Accordingly the depositions of witnesses before the Master who had been previously examined in the cause were suppres sed, and the witnesses ordered to be again examined upon in, terrogatories to be settled by the Master."

Remsen v.

Remsen, 2

"No witness in chief, examined before publication, ought to

John. C. C. be examined before the Master, without an order for that pur

501.

Rule 22.

Smith v. Graham, 2 Swanston, 264.

pose.

The reasons of the rule requiring a special application to the court, where it is wished to examine the same witness before the Master, certainly do not apply to an examination to different facts; and Lord Thurlow treats the question as a dry point of practice. The Master eventually settles what questions shall be put; what relate to the same matter to which the witness was before examined, and what do not. Why not do this under this general principle, and the rule of the court that he shall settle all interrogatories for the examination of a witness before examined, without the necessity of a special order, which must be granted by the court, almost as of course? I am of opinion our court would establish the practice of allowing the Master to examine the same witness to plainly distinct matters, without an order, if the case was fully brought before it. The language of the 22d rule is however positive that no witness once examined shall be again examined either to the same or different facts, but by order of the court, on sufficient cause shewn. And the following late case shews that the rule is still strictly adhered to in England.

"J. W. Ready had been examined as a witness under the decree of reference without an order, having been examined in the cause previous to the hearing. It appeared by affidavit that the examination was to different matters. It was moved that his deposition on the second examination be suppressed.

Publication had passed.

Lord Chancellor.-The single difficulty in this case arises from the period in which the motion is made, namely, after publication. The fact that the examination is not to the same matters is not an answer to the application. The established practice is founded on this principle, that the court expects to have the judgment of the Master, in the first instance on the interrogatories, in order to prevent depositions that may affect the previous statements of the witness. Adopting a rule to avoid the necessity of itself enquiring in every instance, whether the examination is to the same matters, the court, for that purpose, directs the Master to settle the interrogatories.

The depositions were suppressed, without prejudice to an application for the re-examination of the witness. And the following order was afterwards obtained on notice, as it appears.

On this day, Mr. Winthrop moved, that J. W. Ready be examined as a witness on behalf of the plaintiffs, under the said decree, to any matters to which he has not been before examined, and that it be referred to Mr. Courteway, one, and "to settle the interrogatories for that purpose; which upon hearing Mr. Agar of counsel for the defendant, is ordered accordingly."

sd. Where the examination proposed is of a different witness, to facts examined to before hearing. The cases are contradictory, whether a special order is requisite.

Willan v. Willan,

the Regis. book.

"There was a direction in the decree in this case for the Mas- Shepherd v. ter to enquire into the value of an estate. Witnesses had been ed by Lord Collyer, citexamined, and their evidence communicated to both parties. Elden, in Afterwards it was conceived that the evidence of another individual, being a tenant of the estate, was necessary to be had Cooper's car upon the subject of its value. A special application was es, 293. from made to examine that individual.” "Motion on behalf of the plaintiff, that the Master might Willan v. be directed to receive such evidence as the plaintiff proposed Willan, Cooper's cas to lay before him, by affidavits, or to examine witnesses upon es, 291. interrogatories before him, in order to repel the claim of the defendant in respect of improvements alleged by him to have been made on the lands in question.

Depositions had been taken before the hearing on the part of the defendant only.

By the decree the Master was directed to enquire whether any lasting improvements had been made by the defendant upon the premises.

A state of facts had been carried in by the plaintiff, and interrogatories left by the Master; but he had written underneath the draft of the interrogatories as follows. "The depositions taken on the part of the defendant, having been published by the examiner, and office copies thereof taken by the Solicitor for the plaintiff, I think I am not authorised to sanction an examination of witnesses, on the part of the plaintiff to the same matters; and if the plaintiff is entitled now to examine witnesses, I apprehend the interrogatories are not to be settled by me, without the special order of the Court. J. S. Harvey."

Lord Elden after citing the above case of Shepherd v. Collyer, said :—As far as this case goes therefore, it confirms the judgment of the Master; that a special order is necessary.

The application stood over, his Lordship directing that a petition should be presented stating the particular circumstances of the case with dates.".