Page:Harvard Law Review Volume 12.djvu/190

170 170 HARVARD LAW REVIEW. shall be examined after the testimony is published ; ^ and, accord- ingly, if new testimony was found to be necessary upon questions which arose after the hearing, it was permitted to be taken, A fortiori, therefore, if new discovery was needed under similar cir- cumstances, the court enabled the parties respectively to obtain it, no similar rule of policy standing in the way. It rriay be added that, when new evidence was needed after the hearing, it was in the Master's office that the occasion for it arose, as it was there that all questions of fact arising after the hearing were, in the first instance, investigated ; and it was, therefore, found convenient to arm the Master with power to enforce new discovery. Accordingly, whenever a cause was referred to the Master for a purpose which might involve a trial of questions of fact, the decree (by which the reference was directed) ordered that, " for the bet- ter discovery of the matters aforesaid," the parties respectively were to produce before said Master upon oath all deeds, books, papers, and writings in their custody or power relating thereto, and were to be examined upon interrogatories as said Master should direct.^ Here, it will be seen, the distinction between discovery and production, i. e., between admissions by parties of facts within their knowledge, and the production by them of documents in their custody or power, is fully preserved. Whether the relative place assigned in the decree to the direction as to the production of documents was meant to indicate that such production should take place before the examination on interrogatories, may not be clear. Certain it is, however, that the former was relatively of much greater importance in the Master's office than at the hearing of the cause. Moreover, the words " produce before said Master upon oath " import that the production is always to be accompanied by an affidavit ; and, therefore, economy suggests that such affi- davit should be made to serve the purpose which, in the case of documents produced before the hearing, was served by the answer to the bill, especially as an affidavit is quite as convenient for such a purpose as an answer to a general charge or a general interroga- tory as to documents. The important part of either is the negative part, /. e., that in which the party swears either that he has no relevant documents, or none except those which he specifies; and, in the case of either, the terms in which this part is expressed must be prescribed. In the case of an answer they are prescribed 1 See supra, pages 163-5 > vol. xi. 144. ^ Seton on Decrees (ist ed.), 11.