The said defendant insists, that upon taking and stating the accounts between the parties upon the reference pending before I. H. one of the masters of this court, he, the said defendant, is entitled to be credited the following sums of money: viz. 1814. May 1. 1813. July 6. Cash paid the said complainant this day, Dec. 10. Cash paid for repairs done upon the house belonging to the plaintiff at his request, The defendant insists that he is entitled to charge against the complainant, the amount of his commissions upon selling and transferring six shares in the Bank of New York, and other services in relation thereto, at the rate of 5 per cent. according to the agreement between them; the said shares having produced $600. May 10. For duties, commissions and charges, paid by defendant upon ten pipes of Madei ra wine, belonging to the plaintiff. $ 500 200 30 1000 And that he, the said defendant, is moreover entitled to be credited with interest upon each of the items above mentioned respectively, from the date thereof until the making up of the master's report. And the defendant craves leave to alter or amend this his discharge as he may be advised. Dated, 1816. G. H. Defendant's Sol'r. To substantiate this discharge, the defendant is not allowed to read his own answer or examination unless under particular restrictions. The doctrine, indeed, when the defendant's answer will charge him, but shall not be admitted as proof to discharge him also, has been very fully discussed in our court in the case of Hart v. Ten Eyck and others, 2 Johns. Chan. Rep. 87. &c. where a distinction is taken between an answer to the bill filed in the cause, and the examination of the defendant as a witness before the master, p. 88. It seems, however, to be settled, that if the defendant admits that he received a sum of money, and states some other fact to discharge him from it, as that at some subsequent time he paid it away, or that it was afterwards given to him by the plaintiff, he will be bound by his admission of the receipt, but must prove the matter set up in avoidance or discharge. In an account of twenty years standing, it was ordered, that the defendant prove on oath what he cannot prove by books or cancelled bonds, it being of so long standing. (a) The same of an account of four years standing.(b) The court will not allow any thing to be put to the account of general expenses, but particulars must be named. In England, the defendant accounting before the master, is to be allowed, on his own oath being credible and uncontradicted, sums not exceeding 40 shillings each; but then he must mention to whom paid, for what and when, and he must swear positively to the fact, and not as to belief only, and the whole items so established must not exceed 1007. and the defendant (a) 1 Chan. Cases, 146. Pyton v. Green. (b) 1 Chan. Cases, 127. cannot by way of charge, charge another person in this way. And our court commenting upon and adopting the principles above, adds, that forty shillings sterling was the sum established in the early history of the court, and perhaps twenty dollars would not now be deemed an unreasonable substitute.(a) Examination of witnesses. The charges and discharges being filed, the parties respectively proceed to establish the disputed items by their proofs. These proofs may be taken on written interrogatories prepared by the parties, or by viva voce examinations, as the parties shall think fit, taken in the presence of the parties, except when specially ordered to be in secret. The testimony should in all cases be reduced to writing by the master, or under his direction, for the sake of certainty, and also to prevent its being lost in case of the master's death or removal from office. If the testimony is in writing, the papers and proceedings may all be handed over to the master's successor, and the cause will not be delayed in case of his removal, or death; but when a mere memorandum or short note of the testimony has been taken down, if the master were changed, (which is a very common thing with us,) it would be necessary to commence de novo, or many material points of the testimony, which the other master carried in his memory, would be lost. The regulations of the court also prescribe, that in all cases where the master is direct ed to report the proofs, the depositions must be redu- (a) Ante, p. 222. (b) Ante, p. 223. No. 5. 1 upon interrogatories, they must be prepared by the solicitor. These interrogatories, according to the English practice, are settled by counsel, and not by the master, in which respect they differ from the interrogatories for the examination of a party.(b) Though in particular cases, as where a witness has been examined before, and is directed to be examined anew to a particular point, it is usual to make it part of the order that the master settle the interrogatories:() and exceptions may be taken to the interrogatories as settled by him.(d) In the regulations laid down by the court upon this subject, it is prescribed, that the interrogatories must be approved by the master. (e) Whether this is intended as a departure from the English practice upon the subject, it is not the province of the compiler to determine. The interrogatories being prepared, leave a copy with the master, and serve another copy upon the opposite solicitor, giving him notice of the time when the witnesses will be examined. There is no rule of court which regulates the time of this notice, but from analogy of the proceeding before the examiner, (f) it will be proper to give six days notice of the examination of the witnesses. Notice of the names of the witnesses, their addition and place of residence, should in like manner be given two days before the time appointed for their examination; and instructions should be served upon the examiner, directing him what interrogatories to put to each witness. If the opposite party wishes to file cross interrogatories, he is at li (b) 1 Turner, 126. 2 Harr 103. 2 Johns. Chan. Rep. 499. (c) Browning v. Barton, Dick 508. (i) 6 Ves. 759. 2 Johns Chan. Rep. 499. (e) Ante, 222. (ƒ) Ru'e 21. 250 making public CHANCERY PRACTICE. berty to do so, and must serve a copy thereof upon the other party two days before the time appointed for 10. Time of the examination. In England, the parties are not prethe testimony. sent when the witnesses are examined upon interrogatories, and the depositions remain in the master's office, and it would appear, are not made public until the whole examination is concluded, although the books of practice and the authorities do not clearly settle that this is the case. But with us it is required, that except in special cases, the testimony be taken in the presence of the parties.(g) But to prevent abuses, it is required, that when the examination is once begun before the master, he ought to proceed with as little delay and intermission as the nature of the case will admit of, to the conclusion of the examination, and that when once concluded, it ought not to be opened for further proof without special and very satisfactory cause shown.(h) In consequence of this modification of the practice respecting the examination of the witnesses, the parties must be careful if they are not ready to go through with the whole examination of the witnesses at once, to obtain further time from the master for the production of their witnesses, which will be granted upon the usual application. The attendance of the witnesses before the master, is compelled by a subpoena issued by the clerk under the seal of the court, and not by a summons from the master. According to the English practice, the same subpœna issues as to bring him before the examiner, which is the same as the subpoena to answer, but the label expresses the purpose; (i) but as with us, the subpœna to bring the witness before the examiner, must (g) Ante, p. 223. (k) Ibid (i) 3 Yes. 605. |
