Page:Harvard Law Review Volume 12.djvu/177

DISCOVERY UNDER THE JUDICATURE ACTS. 15/ Again, when a plaintiff had exhausted all the processes of con- tempt, and still was unable to compel the defendant to answer, the court would, by way of punishing the defendant for his contumacy {in poenam contu7nacice), direct that the bill be taken pro confesso, i. e., that the defendant be treated as admitting to be true all the allegations in the bill which were necessary to enable the plaintiff to obtain a decree, and accordingly that the same decree be made against him that would have been made if he had filed an answer actually admitting them to be true. This was undoubtedly a very strong measure, but the court had the authority of the canon law to fall back upon, and it also had a much stronger reason for adopting the measure than the canon law had ; for in the latter the only evil. suffered by the plaintiff from the defendant's neglect or refusal to answer was the loss of the discovery to which he was entitled, while, in the Court of Chancery, he lost the right to prosecute his suit. At the same time it was a measure which, on account of the delay and expense which it involved, failed to meet the requirements of justice in all that class of cases in which the right to prosecute his suit, and not discovery, was what the plain- tiff demanded ; and accordingly, with the aid of the legislature, other expedients were adopted during the second quarter of the present century to meet the needs of the class of cases just men- tioned. Thus, in 1830, it was provided by statute^ that if a defend- ant, on being brought to the bar of the court to answer his con- tempt in not answering the bill, still refused to answer, the plaintiff might, instead of having the bill taken pro con/esso, put in an answer in the defendant's name, stating that the defendant left the plaintiff to make such proof as he should be able or be advised to make, and submitting his interest to the court. What strikes one most strongly in this provision is the misplaced tenderness with which it treats the defendant; for not only is it confined to cases in which the defendant is actually before the court, and yet continues to persist in his contempt, but the defendant is given twenty-one days' further time to answer, and even at the expiration of that time the plaintiff is permitted to put in an answer for the defend- ant only with the leave of the court, to be obtained on ten days' notice to the defendant, in case no good cause be shown to the contrary ; and yet, when all is done, the only boon conferred upon the plaintiff is that of being permitted to prosecute his suit, and 1 II Geo. IV. and i Wm. IV., c. 36, s. 15, Rule 11.