Page:Harvard Law Review Volume 12.djvu/185

DISCO VER Y UNDER THE JUDICA TURE A CTS. 1 65 of the Court of Chancery. The consequence was that, prior to the publication of the testimony, the only information to which a liti- gant was entitled as to the evidence to be adduced by his adversary w^s the names and places of residence of his witnesses,^ and such information as the bill and answer respectively contained. The court, therefore, found it necessary to establish the rule that a plaintiff must in his bill, and a defendant in his answer, indicate not only the facts which he expected to prove, but also, to some extent, the evidence by which he expected to prove them, at the risk of having his evidence excluded, on the ground that it had taken the adverse party by surprise ; and hence it frequently be- came necessary to make statements or charges of evidence, not only in the bill, but in the answer, — not only for the sake of discovery, but lest the adverse party should persuade the court that the evi- dence had taken him by surprise. As, however, the rule of secrecy was wholly abolished by the statute in question,^ the anomaly to which it gave rise might well have been abolished also ; and if it had been, and at the same time the union between discovery and pleading had been dissolved, the pleadings in the Court of Chancery would have become precisely what the pleadings in the civil and canon law were, subject to the single qualification that all the plaintiff's pleadings would have been contained in the bill, and all the defendant's in the answer.^ Next, let us see what the commissioners actually did for the im- provement of the system of pleading in the Court of Chancery, or rather what the legislature did upon their recommendation, ^y sect. 10 of 15 & 16 Vict, c. 86, it is enacted (i) that every bill shall contain as concisely as may be a narrative of the material facts, matters, and circumstances upon which the plaintiff relies ; (2) that 1 For greater security the examiner was required to give this information, — not the party calling the witness or his solicitor. Prior to the twenty-fifth Order of April 3, 1828, the examiner was also required to show every witness personally to the adverse party or his representative, in order that the latter might see that the witness was the person whom he purported to be. " Before the witness is examined, he is to be intro- duced into the Six Clerks' office by the Examiner's clerk, and produced at the seat of the adverse clerk in court, where the Examiner's clerk is to leave a notice in writing of the name and place of residence of every such witness, in order to prevent wit- nesses from being personated, and to give an opportunity for cross-examination." Harr. Ch. Pr. (ed. of 1808) 261. By the Order just referred to, however, it was pro- vided that in future witnesses should not be produced at the seat of the clerk in court for the adverse party, but that the service there of the notice in writing should continue. See 2 Russ. App. 12. ^ Sect. 31. 8 See supra, page 163; vol. xi. 207-8.