Page:Harvard Law Review Volume 12.djvu/187

DISCOVERY UNDER THE JUDICATURE ACTS. 167 physically separated from the bill, yet constructively are still a part of it; secondly, that while (as before the act) charges of evidence will do the plaintiff no good, yet the absence of them will be as fatal to his right of discovery as ever; thirdly, that there is still but one answer, and that is an answer to the bill, — not to the interrogatories; fourthly, that discovery and defence are still as inseparable as ever, so that, while (as before the act) there may be neither discovery nor defence, or either without the other, yet if there are both, both must be contained in the same document. What, then, was the gain? The division of the pleadings into numbered paragraphs seems to have been about its sum total ; and it is difficult to see what other gain the com- missioners could have anticipated. What advantage, for example, could they have supposed would accrue from physically separating the interrogatories from the bill, and making them a part of it again by construction? If a plaintiff wished to indicate by his bill whether or not he required from the defendant an answer by way of discovery, there was already a much more simple and a much better way of doing it.^ It may be added that when a plaintiff, by his bill, pursuant to an authority vested in him, dispenses with an answer from a defendant by way of discovery, such defendant can- not with any propriety either plead or demur to the bill, since by doing either he will be demanding the judgment of the court upon the question whether he shall be required to answer a bill which he has already been released from answering, /. e., upon a question which has no existence, and a decision of which, therefore, either way will be followed by no consequences ; and yet it is expressly enacted, sect. 13, that a defendant may plead, answer, or demur to a bill, whether interrogatories are filed or not, i. e., whether he is required to answer the bill or not. Upon the whole, it is impossible to say much for the labors of the commission, so far as they related to the system of pleading in the Court of Chancery; and yet of the six equity lawyers on the commission, two afterwards became Lords Chancellors, another Master of the Rolls, two others Lords Justices, and the remaining one a Vice Chancellor. It ought, however, in justice, to be said that the attention of the commission was chiefly occupied with other things. It remains to consider briefly two changes made by the same 1 See supra, pages 161-2. 22