Page:Harvard Law Review Volume 12.djvu/179

DISCOVERY UNDER THE JUDICATURE ACTS. T59 the name of " traversing note " ; ^ it was further regulated by the General Orders of May 8, 1845,^ "^^d continued to be a feature of the practice of the court until it was superseded by the Judicature Acts. It must have been a great boon to all those plaintiffs who could not obtain an answer without resorting to the processes of contempt, and who yet did not care enough, either for discovery or for having the bill taken /^(t? confesso, to make it worth their while to incur the expense and delay which each involved. And yet it seems odd that it should not have occurred to the authors of the " traversing note " that there must be some very radical vice in a system which required a remedy so circuitous and so artificial for a phenomenon so ordinary as that of a defendant's failing to " plead " ; or, if it did occur to them, that, having been clothed by the legis- lature with ample powers for the purpose, they should not have attempted to discover and cure the vice itself, instead of content- ing themselves with dealing merely with one of its manifestations. It often happened in the Court of Chancery that persons against whom the plaintiff sought no relief, but who might claim that they, and not the plaintiff, were entitled to the relief claimed by the plaintiff, or to some part of it, were required by the court to be made defendants for the protection of the principal defendant, i.e.y in order that they might be bound by any decree which the plain- tiff might .obtain against him. In many of the cases in which such persons were made defendants, they had no thought of concerning themselves with the litigation, and there was, therefore, no good reason why they should even appear to the bill, much less answer it. Accordingly, it was provided by the orders of Aug. 26, 1841,^ that such defendants need not be served with a subpoena, but might instead be served with a copy of the bill, omitting the interrogating part, — in which case the bill, as against such defendants, should not pray for a subpcena, but should pray that such defendants might be bound by all the proceedings in the cause ; that if such defend- ants, being so served with a copy of the bill, did not appear thereto. ^ It is hard to say whether equity lawyers or common-law lawyers ought to have been most bewildered by this name and the language of the orders which suggested it, — the former, at finding one of the most technical terms of common-law pleading sud- denly introduced into the nomenclature of equity procedure ; the latter, at finding the defendant's failure to answer treated as a reason why he should be regarded as having denied the plaintiff's case, instead of a reason why he should be regarded as having admitted it. 2 Orders 52-58. See i Ph. Ixxxviii-xc. • Orders 23-29. See Cr. & Ph. 374-7. 21