Page:Harvard Law Review Volume 12.djvu/192

172 HARVARD LAW REVIEW. tories, whether contained in an original or an amended bill, or, in case of interrogatories, whether contained in a bill or brought into the Master's office. Such, then, having been the practice before the statute respect- ing the discovery and production of documents, both before and after the hearing, what changes did the statute make? By sect. 1 8 it is enacted that the court may, on the plaintiff's application, make an order for the production by any defendant upon oath of such of the documents in his possession or power, relating to the matters in question in the suit, as the court shall think right ; and, by sect. 20, a similar provision is made for production by the plain- tiff on the application of a defendant. If these sections be read in the light merely of the previous practice as to production before the hearing, their meaning will be found to be obscure and uncer- tain, but if they be read in the Hght of the previous practice as to production after the hearing, their meaning becomes clear; for they employ the very terms which decrees had rendered so familiar. Their effect, therefore, was that, of the two methods which had previously been employed for enforcing the discovery and produc- tion of documents, namely, one before and one after the hearing, the latter should be available before the hearing as well as after it, so that there should be, before the hearing, a choice of either method. There was, however, one thing lacking to make the new method prescribed by the statute complete, for no provision was made for filing interrogatories ; and, therefore, the new or statutory method was left to be supplemented by the old method, so far as regarded the use of interrogatories, i. e., if a party, seeking produc- tion under the new method, was not satisfied with the discovery afforded by the affidavit which accompanied the production, he was left to seek further discovery by answer to interrogatories filed under sect. 12 or sect. 19 (as the case might be). And if the inter- rogatories so filed, and the answers to them, had been made entirely independent of the pleadings, as they might have been made avail- able for every purpose which interrogatories could serve, any fur- ther provision for filing interrogatories would have been superfluous ; but as the interrogatories authorized to be filed by sect. 12 were made a part of the bill, and as the answers to them must be contained in the answer to the bill, they were not at all adapted to the needs of the new method of enforcing the discovery and production of documents; and it seems, therefore, to have been a misfortune that sects. 18 and 20 did not contain a provision for filing interroga-