Page:Harvard Law Review Volume 12.djvu/174

154 154 HARVARD LAW REVIEW. over, that the union of discovery with the pleadings was respon- sible for all the potency, if not for the very existence, of that rule in the Court of Chancery; for, in consequence of that union, a defendant's answer by way of discovery, being a part of the plead- ings, was always before the court, though it had not been read in evidence ; and, therefore, though a defendant could never read his answer in evidence, yet he could point out the fact that certain allegations in the bill were positively denied by his answer, for the purpose of showing that such allegations could not be proved by the testimony of a single witness. If, however, the answer by way of discovery had not been a part of the pleadings, it would not have been before the court at all unless the plaintiff chose to read it in evidence, and hence the plaintiff could have required an answer by way of discovery in all cases, without incurring any risk of being injured by it, as it would have been at his option, up to the very last moment, whether or not it should be used for any purpose. Turning now to the case of a defendant, we find that no pro- vision whatever was made for his pleading an affirmative defence, that the answer of a defendant in theory comprised nothing but his examination under oath, by one of the masters of the court, upon the statements, charges, and interrogatories contained in the bill, and yet that it was only by incorporating with his examination by way of discovery any affirmative defence that he might have, that a defendant could avail himself of such defence at all ; and hence that the union of pleading and discovery was quite as indis- soluble in respect to a defendant as it was in respect to a plaintiff. One consequence was that a defendant always had to swear to the truth of his defence, while a plaintiff was not required to swear to the truth of the case stated in his bill, — an inequality for which there was no justification. Moreover, it is wrong in itself to re- quire a party to swear to the truth of his pleadings, and parties have never been intentionally required to do so in England unless in very exceptional cases. A party may have a perfectly good case or defence, and yet have no personal knowledge whatever of the facts which constitute it, nor even what a conscientious person would regard as any grounds for belief in regard to them. In the case of executors and administrators in particular, this is a matter of daily experience. Least of all should a party be required to swear to his pleadings in a court which, like the Court of Chancery, boasted pre-eminence in giving discovery, and which yet gave it