This cause was recently sent to a master to inquire into the truth of the inculpating allegations of the bill. The defendant Durant now moves the court to direct the master in making the inquiry to exclude ex parte affidavits and require the witnesses to testify either orally or by deposition, with opportunity for cross-examination. The complainants claim the right to use any affidavits *Page 103 which they have already used in the hearings before the court under Rule 72 in equity. The rule is as follows, to wit:
"All affidavits, depositions, and documents, which have been previously made, read, or used in the court, upon any proceeding in any cause or matter, may be used before the master."
In the published rules this rule follows a rule that regulates accounting before a master, and, therefore, the defendant contends that it was intended to apply only when a master is taking an account. The argument is not convincing. The rule purports to be a rule for "any cause or matter," and contains no reference to the preceding rule. We must allow it to have its obvious meaning. Adams' Equity, 383.
But while we think the affidavits are admissible under the rule and therefore cannot instruct the master to exclude them, nevertheless we think it is within the power of the master to require the production of other testimony if he is not satisfied with them. He has the power under Equity Rule 69, which expressly gives him, besides other powers, authority "to direct the mode in which matters requiring evidence shall be proved before him." Under this rule the master will of course exercise a judicial discretion, which we will not attempt to control in advance otherwise than by remarking that it is his duty under the decree to allow the defendant, Durant, to cross-examine the affiants, whose affidavits are introduced, either orally before him or by deposition.
In the hearing before the court the report of a committee of Congress, with appended exhibits and testimony, was read as evidence by consent. The complainants claim the right to use it before the master as a document, under the rule above recited. The report is a congressional document, but it is not, in our opinion, a document within the meaning of the word as used in the rule. What the rule means is some writing like a deed, a will, a letter, or an account rendered or stated, which is evidence as soon as it is authenticated, independently of the consent of parties. We think, therefore, that the master will do right not to admit the report or its exhibits as evidence unless in the course of the hearing they should become admissible in connection with other testimony and on other grounds.
Order accordingly.