Page:Harvard Law Review Volume 12.djvu/172

152 152 HARVARD LAW REVIEW. pleading, if they would have opened their eyes to the fact that that system was not indigenous to the Court of Chancery, and, therefore, that the standard by which it was to be judged must be sought elsewhere than in that court ; for then they could not have failed to see that, while the Court of Chancery was entitled to little credit for the virtues of that system, it was responsible for all or nearly all its vices, and hence that the way to improve it was to make it conform more closely to its prototype. In the civil and canon law, as has been seen,^ discovery, while of course it was intimately connected with the pleadings, was nevertheless separated from and independent of them. When the plaintiff in a suit had filed his first pleading, if he wanted dis- covery from the defendant to aid him in proving it, he filed posi- tions, — which the defendant was required to answer upon oath. If he did not want discovery, he filed no positions, and then there was nothing for the defendant to answer. Meantime the defend- ant had to consider whether he would set up an affirmative defence. If he decided to do so, he filed a pleading, and then the same questions arose upon that, mutatis mutandis, as upon the plaintiff's first pleading; and this process went on until each had pleaded all the facts that he had to plead. If the defendant decided to set up no affirmative defence, he filed no pleading, and so of course the pleadings ended with the plaintiff's first pleadings ; and in what- ever stage of the series the pleadings ended, they ended because the party whose turn it was to plead did not avail himself of his opportunity. It will be seen, therefore, that while the filing of pleadings was a right, and had in it no element of duty, the giving of discovery was a duty, and had in it no element of right. Indeed, the giving of discovery was not even a duty which could be voluntarily per- formed, for a party could not answer by way of discovery unless positions were filed for him to answer ; and it seems that this was also true in the English ecclesiastical courts, notwithstanding the fact that in those courts the positions were always incorporated with the pleadings ; '^ for, though the consequence was that the pleadings themselves had to be answered by way of discovery, yet this was done only pursuant to an order of the court, and of course such an order would be made only upon the application of the party whose pleading was to be answered. 1 See vol. xi. 143-4. ^ See vol. xi. 144.