Page:Harvard Law Review Volume 12.djvu/176

156 156 HARVARD LAW REVIEW. which it could be distinguished from the other with any certainty ; and, therefore, their union in one document was the cause of infi- nite confusion.^ Moreover, this was an evil which time had no tendency to cure, or even to mitigate ; for it was an evil which affected the whole body of suitors, and from which no individual often consciously suffered, and, therefore, it failed to attract the attention of the public. When a plaintiff found it impossible to compel a defendant to answer, and there was a total failure of jus- tice in consequence, the evil was one which could not long be pas- sively endured ; and even the necessity of incurring the expense and delay of obtaining an answer, signed and sworn to, from every defendant to a suit in equity (however distant or inaccessible he might be, and though an answer from him by way of discovery could be of no value to the plaintiff, either because no relief was sought against him, and he was made a defendant merely in order that he might be bound by the decree, or because he had no knowl- edge of the facts of the case), was an evil which was sure to be felt by individual suitors, and was, therefore, likely to excite loud complaints. Accordingly, we find that several expedients were adopted, from time to time, with a view to making it possible to prosecute a suit without any answer at all from a defendant, or without an answer signed and sworn to ; but all these expedients were designed merely to meet the particular evil which was felt, and they left the general evils resulting from the unnatural union of discovery and defence untouched and unnoticed. Thus, with the plaintiff's consent, the court would make an order that the defendant be permitted to file his answer without oath, or even without oath or signature {i. e., that the defendant's solicitor be permitted to file it, without the necessity of communi- cating with his client). This expedient, of course, was appHcable only to friendly suits, as it required the co-operation of both parties. Moreover, an answer was still necessary, notwithstanding such an order, and it still contained, in theory, discovery as well as defence. 1 For example, it has not been generally perceived that the denials contained in answers are merely by way of discovery, and hence the truth that bills and answers, regarded as pleadings, are wholly affirmative, has not met with general acceptance; and yet the fact that a defendant may be compelled to admit expressly in his answer whatever he cannot deny under oath, and that whatever the defendant does not ex- pressly admit the plaintiff must prove, ought to have reminded any one who needed such a reminder that there are no constructive admissions in equity, and hence that there would be no occasion for any denials in an answer, were it not that the defendant is compelled either to admit or deny by way of discovery.