Fowler's Ex h Prac. Ibid. Page 137. Gerard v. ought not to have been satisfied. There is a clear right to an enquiry, whether the defendant has such papers or not. A motion was afterwards made for an order, that the plaintiff might exhibit fresh Interrogatories, upon the ground, that the defendant had not given sufficient evidence of his having produced all the papers in his possession. He had stated in his examination, that he had several bills of costs, &c. and many, which he referred to, were not produced. He made a general affidavit, that he had brought in all he could find. The motion stood over to give the defendant an opportunity to make a more particular affidavit. When the solicitor would inspect the books, &c. left with the Master, he must take out a summons for that purpose, that the opposite solicitor may attend if he thinks proper. Without this, the Master should not allow an inspection. It is underwritten,To inspect the books and papers left by the ” After an attendance by the adverse solicitor, or a service of three warrants, if he does not attend, a further inspection may be had on any subsequent warrant. Of course, by our practice, after one summons, the Master may adjourn for another inspection, whether the opposite solicitor attends or not. If the party has procured the production of the books, and afterwards requires an examination from the defendants, it may be necessary that the books should be re-delivered to enable them to prepare it. In Hand's Solicitor's Assistant, is the form of an order in such a case, made upon notice, which recites an affidavit of the defendant stating that the plaintiffs had filed interrogatories for the defendant's examination, that his books and vouchers had been left with the Master, and he could not put in such examination without them, and that it would be injurious to his business to attend at the Master's office for that purpose, and ordered that the several books specified in the order should be delivered to the defendant, that the plaintiffs be at liberty to inspect them while in his custody, giving reasonable notice, and that they be returned when the examination was put in, in the same state and condition. There are some decisions upon a production before hearing, which are applicable to the present subject. "Motion to produce and leave with his clerk in court certain books of account, admitted in the defendant's answer to contain entries relating to plaintiff's demands, as well as other Powell. Ibid. transactions. Lord Chancellor-There being no affidavit that note (b) the books are in daily use, the proper order is, that the defend 1 Swanston. 533. See also Jones v. ant shall leave them with his clerk in court, sealing up such parts as do not concern the plaintiff, and pledging himself by oath that he has sealed up those parts only." So in Campbell 2 Cox. 286. v. French, it is stated, "that the case often occurs in the court, that where parties are directed to produce books of account, they are permitted to seal up and conceal all the other parts of the books relating to other accounts." In the same case as reported, 1st Anstr. 58. the defendants set forth extracts of letters, stating in their answer that they had set forth all the parts of letters in their possession relating to that business. The plaintiffs required the letters themselves to be produced. By the court." The defendants swear to have produced extracts of every thing relating to those bills, the other parts of the letters are not relating to them; they have sworn at their peril, but very fully, and we cannot order a production of the other correspondence, as we have no inquisitorial authority to investigate all the other transactions of these merchants. So when a party refers to extracts from books of accounts, those parts which he states to be immaterial are left sealed up." If books are produced before the Master, with portions sealed up, the party's oath of their not relating to the matters in question must be taken in the first instance, as sufficient. But if the adverse party can shew any fair ground for supposing any part has been sealed which is material, whether designedly or not, he may require it to be opened; and if this is refused, upon certificate of the Master that in his opinion such part should be opened, the court would compel it. CAP. II. SECTION 3. EXAMINATION OF PARTIES. Under this head are considered, 1st. The nature of an examination. ed. When a Master may examine parties; and who are parties in this respect; and who has a right to call upon him. to examine them. 3d. The mode of procuring and taking such examination in England. 4th. The manner of correcting the errors of the Master. Fowl. Exch. Howard 33. 3 Atk. 511. Sir S. Romilly. Hatch v. 19Vesey, 116. 2 Johnson. Remsen v. Cornish v. 5th. The mode of proceeding upon a viva voce examination in our State. 1st. It is important to ascertain the true nature of an examination, that the questions concerning it which are not expressly decided, may be understood. An examination is in the nature of an answer or further answer of a party, after a decree, It is an answer or further answer, because it may be required from a plaintiff, as from an executor filing a bill for directions and indemnity. When from a defendant who has answered, it is a further answer. The following authorities prove this to be the nature of an examination. "The examination of a party to interrogatories after a hearing is considered in the nature of an answer to a bill before the hearing, and to which exceptions may in like manner be taken. "If the answer to personal interrogatories be short, the opposite party may except thereto, and these exceptions are to be referred to a Baron, and to be proceeded on in the same manner, with exceptions to short answers to bills. The defendant is not to be examined upon these personal interrogatories, as witnesses are upon the other interrogatories, he is to answer them in the same manner as he does the plaintiff's bill." The Jurat to an examination is the same, as to an answer. In an anonymous case in Atkyns, Lord Hardwicke, compares the filing fresh interrogatories, after an examination certified insufficient, to amendments of a bill after an answer, reported insufficient. "Examinations are just the same as answers. ple there can be no distinction between them.” In princi And the objects of an examination are precisely those of an answer: viz. to furnish the means by his own statements of charging the examinant in account, of obtaining a decree against him, of sifting on his own oath, his demands, or invalidating his defence to a claim. 2d. The Master cannot examine parties, without the permission of the court. "No witness in chief examined before publication, nor the parties ought to be examined before the Master, without an order for that purpose." But under the general authority given in the decree, he may examine as often as he thinks proper, and to the same, or new matters. "The Cowslaid . defendant was examined before the Master on the account de- Dickens 149. 2 Ves. sen. creed. Afterwards he was re-examined upon new interroga- 270. s. C. tories without an order. Lord Hardwicke held, the Master cited as might regularly do it, as in the course of the cause, new mat- Cornish. ter might arise, and it was in his discretion, the decree giving 1751. it to him: The words are, the parties are to be examined Willan. "It was Cooper's upon interrogatories, as the Master shall direct." settled by Lord Hardwicke, that a Master could re-examine a Chancery, party in the cause without leave, because the decree was, that 290. he might examine parties as he should see fit." 66 66 66 Willan . cases in 3 Atkins, A prior case before Lord Hardwicke is somewhat at vari- Anon. May ance with this decision. "An order was obtained as of 21. 1747, course for liberty to add new interrogatories, the examination 511. being reported insufficient, and to answer both sets at once. "Lord Hardwicke said, that he found no instance of such an order on a motion of course: It had some analogy to orders for amendments of bills, where answers have been reported insufficient. If the party wants to add new interrogatories, he should apply to the court on notice, that the Court may be apprized whether there is ground for it." If Lord Hardwicke thought that new matter arising in the course of the cause was good reason for exhibiting fresh interrogatories without an order, after a sufficient examination; what ground can there be for not allowing the Master to receive new interrogatories, after an examination certified insufficient? I take them to be new interrogatories to new matters. But with us all Rule 15. difficulty upon this subject is removed by our rule requiring the defendant after an answer reported insufficient, to answer amendments to the bill together with the original exceptions. New interrogatories are the same as amendments to a bill, or more strictly, as the exceptions founded upon them. Now unquestionably, if this is permitted by the general rule, the Master may by analogy, receive fresh interrogatories without an order. Buck. In Lynn v. Buck, the Master refused to allow further inter- Lynn v. rogatories for the examination of the defendant, which compre- 3 Mad. Rep. hended more than the original interrogatories. On a motion 281. for liberty to exhibit them, a Mss. case was cited in which Wood v. Milburn, the Lord Chancellor had thought the Master right in refusing May 1801, to allow additional interrogatories, and made a special order. The Vice Chancellor.-My impression is, that if there was a slip in the interrogatories as first exhibited, the Master was at liberty without any application to the Court, to admit of additional interrogatories. The motion stood over for the plaintiff to exhibit the further interrogatories with an intima 13Vesey,262. 2 Coxes cases. 196. Simmons v. tion of the opinion of the Court. If the Master still refused, he would consider what was to be done." I find nothing further of this cause. It appears probable that the Lord Chancellor's decision in the Mss. case cited above was founded on the particular nature of the additional interrogatories, not on the want of power in the Master to receive them, if proper. It is stated, "he thought the Master right in refusing to allow the additional interrogatories, but gave the plaintiff leave to exhibit fresh interrogatories." If the additional had been proper, liberty would have been given to exhibit them. See also Simmons v. Gutteridge, post, and Ex-parte Saunderson, post, which last is a clear authority for a Master's power to re-examine to the same matters without an order. It is scarcely necessary to observe, that the defendant is sometimes the actor in taking the account, and is to exhibit the interrogatories, as where the bill is by a trustee or executor, to settle the estate. So he may examine the plaintiff in cases, where there are mutual accounts to be investigated. I conceive that the Master may receive interrogatories or further interrogatories from any party in the cause, for the examination of any other party, without an order. The usual decree was made, under a bill by legatees for an Gutteridge, account against executors. 13 Vesey, 262. The usual examination had taken place, and a year after some defendants also entitled as legatees and next of kin, applied to the Master to exhibit an interrogatory for the examination of the executor, whether he was indebted to the testator. The Master refused to receive it, and a motion was now made to the Court for an order. The motion was resisted, counsel insisting that a defendant could not exhibit interrogatories for the examination of a codefendant. Such an application was repeatedly refused by Lord Eldon in Allen v. Miller; an account decreed against two executors, one of whom wished to shew, that the other had received the whole. At least it ought to be made upon evidence. On the other side it was said, that in such cases all parties are actors, and every legatee being a party may exhibit interrogatories. Lord Chancellor said, the question was, whether the defendants, being legatces, could, as of course in every case, exhibit such an interrogatory, merely asking the question, whether the other defendant was indebted to the testator, not embarrassing the cause with a long and complicated account, in which case they would be required to file a bill. If the |