answer is, that there is a long account, and he cannot say the balance is against him, the Master must take that answer, and a bill must be filed. I think the interrogatory should be received. This reduces it to the point, whether a legatee has a right to exhibit the interrogatory. A legatee may suggest that the interrogatories are defective, with a view to introduce that which ought to be in every decree for an account against an executor. It proceeds upon this, that this is the interrogatory not of the party, but of the Master, an interrogatory which the Master ought to put in every case. The order was for liberty to exhibit the interrogatory." The case of Allen v. Miller must have been upon the principle that the examination would have been wholly useless, Lord Elden strongly holding, that Executors joined in a receipt are both liable, whoever received the money; otherwise his refusal of permission to examine, would be directly to his decision in Colquohon v. Franklin. The case of Ladlier v. Lushington, cited by Counsel, seems Post. to have been one of a stated account between the executor and testator, which Lord Alvanley said, the Master did right not to unravel. A strong case was necessary. If the party has been examined in chief before the decree as a witness under the usual order for a plaintiff or a defendant to examine a defendant, the Master has not a right to examine him under the general authority.-There must be a special order obtained from the court. M'Namara, "A motion was made, as of course, on behalf of the defendant M'Namara, that the other defendant, Purcell, might be ex- Pucell v. amined upon interrogatories before the Master. The motion 17Vesey, 434. was made after the decree; and this defendant had been examined in chief and cross examined. Lord Chancellor said,Though the usual direction is to examine the parties, as the Master shall think fit, the practice has been long settled, that a Master cannot without an order, examine a party, who has been previously examined; that it is not of course, but in the discretion of the court to grant or refuse it. After consulting the Master who wished to examine the defendant to certain points, the following order was made. "Let the Master be at liberty to examine the defendant Purcell upon interrogatories to such of the points in this cause to which she has not yet been examined, as the Master shall think it reasonable that she be examined to, and the Master is to settle the interrogatories." And although a defendant has not been examined previous to the decree, he cannot be examined as a witness on behalf of another defendant under the general words of the decree. See Post, as to this part of the order. Franklin v. "A referColquohon, 16 Vesey, 218. ence had been directed to the Master to review his report, and to enquire by whom a sum of money, charged to two defendants trustees (from having jointly signed the receipt) was actually received. An order was obtained by one of the defendants to examine the other, and on motion to discharge it, Lord Elden said,-Previously to a decree, one defendant may move to examine another, saving just exceptions; otherwise a witness would be made a defendant merely to deprive the other party of his testimony. I have always thought that not a motion of course after a decree, though a special ground may be laid, and it would be difficult to state a stronger case than where all the trustees being answerable prima facie, circumstances may show, that some only ought to be answerable.-Motion denied." A special motion must be made for an order. 16 Vesey, 218. Lee v. Atkinson, 2 Cox. Ca. 413. Murray v. 2 Ves. & Bea. In these two cases, the defendant is examined not as a party, but as a witness for another defendant; in the last to discharge one party from a prima facie joint debt by the oath of the other, who in any event was chargeable. It is also of importance to understand when the testimony of a party, examined as a witness, is legal evidence. It is of course before hearing, to obtain an order for a plaintiff or co-defendant to examine a defendant as a witness, upon an allegation that he is not interested, saving just exceptions, and the allegation that the party is not interested in the order does not seem necessary. It is a motion of course, and the question how far the party was a competent witness must be raised at the hearing of the cause, and when the deposition is offered to be read in evidence. The interest which must be shewn in order to suppress the deposition is not an interest in the cause, but an interest in the matter to be examined to. "Three Trustees were charged with breaches of trust. One of the defendants obtained an order at the Rolls for the examination of an other defendant upon a petition stating she was a material witness, and though interested in the matters in question in the cause, was no way interested in the points to which she was desirous of examining him. On a motion to discharge this order, Lord Chancellor said, that in whatever terms the allegation in the order as to the party's interest, was expressed, it must really mean, that the party is not interested in the matter to which he is to be examined. That the general practice requiring an allegation of no interest in the matters in question in the cause arose from this, that though the defendant might not have a direct interest in the matter to be examined to, he yet might have an interest in the result of the cause in other matters, which Ambler, 583 may be affected by the examination: he may derive a benefit, by his examination to those points in which he has no interest. The real meaning of the general allegation being, that he has no interest in the matters to be examined to, but if in the result of the cause it turns out that he has an interest in those matters by reason of his interest in the others, the deposition cannot be read." So in Nightingale v. Dodd, a decree was had against a defendant who had been examined, upon different matters. "Order that Buck, one of the defendants, should be examined as a witness for the plaintiff, saving just exceptions. Buck was interested in the cause, but not in the matter to which he was examined. It was insisted at the hearing, that the plaintiff having examined Buck as a witness, could not pray any decree against him. But the Court said suggestions in orders of this kind, viz. that the defendant is not interested, must relate to the matters whereto he is examined if he is examined to other matters wherein he is concerned, he may demur, and the Court ordered Buck to account." “The bill was filed against an administrator, charg- Whipple v. ing fraudulent acts, and among others that he had fraudulently Lansing & charged to the estate a sum of money as paid to the defendant Van Ransaellar, 3 Johns. R. which he knew was not due, and had not paid. And that e. c. 612. the account was collusively made between these defendants. Petition of the defendant the administrator to examine the defendant R. as a witness before the Master, to prove the application of the assetts eat to his hands. The Chancellor,-The defendant is charged as particips criHe is called to swear to minis to some of the transactions. the truth and justness of the charges made on his part, and to the payments made on the part of the other defendant, and which are charged as being the result of collusion. If the charge be true, he must not only answer in costs, but he loses the advantage of the settlement he has made with the other defendant, and he will be ultimately responsible for the money. He is therefore on the face of the pleadings, not only a particips criminis, but he has an interest in the result of the cause. He is therefore clearly an incompetent witness." 650. So a defendant clearly cannot examine a plaintiff as a wit- See Dickens, ness without an order, as well by analogy to the rule in Colquohon v. Franklin, as because a special order is necessary be- 595. fore hearing, and it has been doubted whether it could be done Walker. Wingfield, at all. It has been done in a late case, the plaintiff consenting, 15 Vesey, 178. saving all exceptions. 15 Vesey, "The Master of the Rolls had made an order on motion of 178. the defendant for the examination of a plaintiff, saving just ex ister, 419.- ceptions; the plaintiff consenting to be examined. The Reg ister doubting as to the regularity of the order, it was mentioned again. The Bill was by some persons claiming as next of kin against others. One of the defendants wished to examine the plaintiff, to shew he was in the same degree of relationship with himself and entitled, if he was so. The Master of the Rolls said this was not the case of one Plaintiff examining a Coplaintiff, nor a defendant examining an involuntary plaintiff ; but a case in which the plaintiff consents to be examined by the defendant. The question may be made at the hearing, whether the relation and situation of the parties are such, that it is fit that the deposition should be read but he thought the order might be made, saving just exceptions." I am not aware of any objections to the examination of a Plaintiff by a defendant as a witness, except it come from a plaintiff himself on the score of his not being obliged to testify See Pr. Reg- against his own interest. This was obviated in the case in Dickens, and that in 15 Vesey, by the plaintiff's consenting to be examined. So at law, where one of several co-plaintiff's voluntarily came forward as a witness to prove the defendant not chargeable, he was admitted by consent of the defendant. a) 208 Jefferson v. Phillips on 488. 1 P. Wms. (a) Norden v. บ. 1P Wms. 1 Vernon, 23. and If the plaintiff is an immaterial party, the defendant may demur. A plaintiff cannot have an order to examine a co-p'aintiff as a witness before hearing; nor of course after hearing. "Plaintiff moved to examine a co-plaintiff saving just exceptions. Upon his Lordship's consalting with the Register it appeared to be the rule, that no co-plaintiff ought to be examined as a witness on the behalf of the plaintiff; there being this appar595. See also, ent exception to him, viz. bis being liable to answer costs, if the event of the cause should prove against him." And the course as now settled is, to move to strike out the co-plaintiff's name (and make him a defendant if necessary) amending defendant's copy of the bill, and securing the costs to the time. Prec. in Ch. 411. Lloyd v. Maheam, 6 Vesey, 144. and cases there cited. The result of these authorities seems to be, that a party on the record cannot be examined as a witness on behalf of another party, without an order of the Court. And the distinction as to the character in which he is to be examined must be observed as a party, he is examined in order to charge himself in the cause, or to sift the validity of his own claim by his own statements; as a witness, he is examined to establish or aid the claim or defence of a party against another party. It is of importance to keep this distinction in view; if the party is examined as a party with a view to charge him, or to invalidate his claims, this examination is nothing but a continuation of his answer, and the interrogatories are like further charges of an amended Bill-of course there can be no such proceeding as a cross examination. The question is between the party examining and the Examinant; and the latter answers in such manner as he thinks proper under the advice of Counsel. But if he is examined as a witness on behalf of one party, and his testimony is to affect directly a third party, then as a witness that third party has a right to cross interrogate him. To illustrate, this if a plaintiff require the examination of a defendant executor, as to his own act of eating a safe to a bad security, with a view to charge him, he is examined as a party; but if the examination is to be as to the same act done by a Co-Executor, he is to testify as a witness. So in the case 16 Ves. 218, cited, Franklyn v. Colquhan, the defendant who was to be examined was produced to prove that he had actually received the whole of a sum of money, with which the defendant applying to examine him was chargeable, having joined in the receipt as trustee. Of course, he was a witness, and the plaintiff would be permitted to cross examine him. The mode of examining in England is generally by written Newland's interrogatories to which a written answer is put in. Pr. 160. The general form of the decree is to examine all parties upon interrogatories, and in such case the Master must be re- Eq. Draftsstricted to that mode. But in England the Court sometimes man, 650, has authorized a viva voce Examination. 651. 2 Cox's Cases 1787. "On a reference to the Master with liberty for him to ex- Ex-parte, amine all parties on interrogatories, or otherwise, as he should Saunderson, think fit; the Master examined them on interrogatories; but in Ch. 196. there being very strong contradictions in the examinations, the Master wished to examine the parties viva voce, but did not conceive himself at liberty so to do, under the former order, especially after having once examined them on interrogatories. The petition prayed an order for the purpose. The Lord Chancellor thought clearly, that under the former order, the Master might have examined the parties viva voce, even after he had examined them on interrogatories. However he made the order." "Chancellor Kent observed, that the usual course laid down Remsen v. Remsen, 2 J. in the English books was, to exhibit interrogatories for the Chan. 499. |