Page:Harvard Law Review Volume 12.djvu/193

DISCOVERY UNDER THE JUDICATURE ACTS. 1 73 tories ; for the want of proper facilities for supplementing the dis- covery obtained by affidavit under those sections was much felt Unfortunately, also, the judges upon whom devolved the duty of enforcing the discovery and production of documents under sects. 1 8 and 20, namely, the Master of the Rolls and the three Vice-Chan- cellors, did not fully adopt the view which has just been suggested as to the interpretation of those sections. They seem to have sup- posed that the separation of the discovery from the production, which existed under the old method, must be preserved under the new, and yet they were not prepared to accept the natural conse- quence of that view, namely, that there must be a separate pro- ceeding for each ; and accordingly they decided ^ that discovery and production should be obtained under one order, but that that order should be executed piecemeal, i. e., that discovery should first be made within a time named, and then that pro- duction should be made within a further time named. Clearly the statute did not contemplate such an order, and it is not per- ceived that it could be attended with the smallest advantage over an order directing both to be made at the same time ; and it was certainly attended with one serious disadvantage, namely, that it would frequently necessitate the making of a second affidavit at the time of the production.^ The method of obtaining orders for the discovery and production of documents, under sects. 18 and 20, or for production under the old method, received a modification from another important statute,^ passed pursuant to the recommendations of the same commis- sioners, and which came into operation at the same time as the principal act. Its main object was to abolish the office of Master in Chancery, and to transfer the business transacted by the Masters to the chambers of the Master of the Rolls and the three Vice- Chancellors respectively ; but an incidental object was to introduce into the Court of Chancery the common-law distinction between judicial business done in court and that done by a judge out of court, i. e., at the judge's chambers; and, as the distinction itself was borrowed from the common-law courts, so also the mode of proceeding at chambers, namely, by summons and order, was bor- ^ The decision was made by fixing and announcing the form of order to be made on an application for discovery and production of documents. On the same occa- sion the judges announced a form of affidavit which would be deemed a compliance with such an order. See Ordines Cancellarue, 530; Rochdale Canal Co. v. King, 15 Beav. II. 2 See supra, page 169. • 15 & 16 Vict, c 80.