Page:Harvard Law Review Volume 12.djvu/175

155 DISCOVERY UNDER THE JUDICATURE ACTS. 155 only to aid a party in proving his case or defence, — not to aid him in stating it In the Court of Chancery, e. g., it often happened that a party's chief or sole reliance for proof was upon admissions to be extorted from his adversary ; and in every such case, as the pleadings may be only an experiment, there should be great facility of amendment, as there always was in case of a bill ; and yet any amendment of a sworn answer in chancery was attended with great difficulty.^ An incidental consequence to plaintiffs of the indissoluble union of answers by way of defence with answers by way of discovery was, that a defendant could never lose by default the right to set up a defence ; that the only default in not answering was in not answering by way of discovery, and the consequence of that de- fault was, not that the defendant lost the right of answering, but that he became liable to process of contempt to compel him to answer. A defendant, therefore, could never lose any right by de- laying the putting in of his answer, provided he answered eventu- ally; for, whenever he chose to answer by way of discovery, he had a right, of which the court had no power to deprive him, to answer also by way of defence. The greatest mischief, however, which was worked by the union of pleading and discovery in the Court of Chancery was to the pleadings themselves, though this was much greater in the case of the answer than it was in the case of the bill. The only additions that ever had to be made to a bill for the sake of discovery were charges and interrogatories, and neither of these interfered seri- ously with the character of the bill as a pleading. The charges were mere amplifications of the stating part of the bill, /. e., while the latter stated facts, the former stated evidence of those facts; and the interrogatories of course showed on their face what they were, and they could not possibly be mistaken for anything else. With the answer, however, it was far otherwise, for the two ele- ments which that contained were as different from each other as two things could well be, and yet neither of them had any mark by 1 See I Dan. Ch. Pr. (5th ed.) 679-684. " In proceedings upon oath, where there is a clear mistake, an answer has by leave of the court been taken off the file, and a new answer put on it; but Lord Thurlow adopted a better course, not taking the answer off the file, but permitting a sort of supplemental answer to be filed, that course leaving the parties the effect of what had been sworn before, with the explanation given by the supplemental answer." Per Lord Eldon, in Bolder v. Bank of England, 10 Ves. 285. to put in a supplemental answer." Per Lord Eldon in Wells v. Wood, 10 Ves. 401.
 * ' The former practice was to allow the answer to be amended, but now the course is