Page:Harvard Law Review Volume 12.djvu/173

Dr SCO VERY UNDER THE JUDICATURE ACTS. 1 53 In the Court of Chancery, however, the capital mistake was made from the beginning of uniting discovery indissolubly with the pleadings. The only means by which discovery could ever be ob- tained in that court was by filing a bill (and thus making one's self plaintiff in a suit) against the person from whom discovery was sought, and thereupon procuring a writ of subpcena, and serv- ing it upon the latter, who thus became the defendant in the suit. By the subpoena the defendant was required, first, to appear to the bill; secondly, to answer the same (/. e., by way of discovery). Moreover, it was in this way alone that any suit in chancery could be commenced, whatever might be its object, i. e., whether dis- covery was its sole object, or whether its ultimate object was relief, — to which discovery was thus made an indispensable preliminary; and the reason was that the writ of subpoena, under the Great Seal, was the plaintiff's only means of coercing a defendant ; and yet, not only was the tenor of that writ fixed and unchangeable, so that a plaintiff could have no option as to what it should require of the defendant, but a plaintiff could not even waive any of its require- ments. The result, therefore, was that there could be no discovery without a suit, and no suit without discovery; that discovery was always the second thing required of the defendant, and that noth- ing else could be had of him until that was obtained. A conse- quence was that, so long as a defendant could avoid giving discovery, whether by going beyond the jurisdiction, or by keeping himself concealed within the jurisdiction, or even by lying in prison, he could hold the plaintiff completely at bay ; or rather he could have done so but for the adoption of certain expedients for the plaintiff's relief, which will be mentioned presently. Another consequence (which, however, has attracted much more attention in this country than in England) was that a plain- tiff, whose only evidence in support of his case (with the excep- tion of such admissions as he might obtain from the defendant by way of discovery) was the testimony of a single unimpeachable witness, could not possibly obtain relief in equity, if any fact neces- sary to support his claim was positively denied by the defendant's answer. This was because of a rule of evidence borrowed by the Court of Chancery from the canon law, namely, that no fact posi- tively denied by a defendant under oath could be proved against him by the testimony of a single witness, — a rule which derived its sole support from the assumption that the defendant was put upon his oath by the voluntary act of the plaintiff- It seems, more-