Page:Harvard Law Review Volume 12.djvu/180

160 l60 HARVARD LAW REVIEW. the plaintiff might proceed as if they were not parties to the suit, and yet they should be bound by all the proceedings therein ; that if they did appear or took any other action in the suit, it should be at their own expense, unless the court should otherwise order; and that any plaintiff who did not avail himself of the fore- going provisions, but prosecuted his suit against such defendants in the ordinary way, should pay all the costs thus occasioned, un- less the court should otherwise direct. It will be seen, therefore, that while these provisions, like those previously referred to, were designed to enable plaintiffs to prosecute suits withoutany answers, or even appearances, from a certain class of defendants, yet that the motive of their authors was not to save plaintiffs from the necessity of obtaining answers from unwilling defendants, but to remove from plaintiffs an.d defendants alike, in a class of cases in which the costs of all parties were often paid out of an estate or fund which the court was administering, a temptation to incur needless expense. Still, though the evil in this class of cases was different from what it. was in those previously referred to, yet it had its root in the same cause ; for the reason why a defendant against whom no relief was prayed was always entitled to his costs of appearing and answering, was, that, through no fault of his, he was compelled to appear and answer for the benefit of others, and therefore he was of course entitled to be indem-nified for doing so. The reader will not have failed to remark that, in all the forego- ing expedients, the object was to devise means of dispensing, in certain cases, with any answer at all, whether by way of discovery or defence, or with any answer under the oath or even under the signature of the defendant, and that no attempt was made to sepa- rate answers by way of discovery from answers by way of defence. The cases, moreover, in which answers could be dispensed with were exceptions, and of comparatively rare occurrence, the rule being that a defendant answered, unless, indeed, he demurred or pleaded. In the cases, therefore, which constituted the rule, there was no change, and hence the evils arising from the inseparability of pleading and discovery had received no mitigation. It seems clear, therefore, that the alteration and amendment in equity plead- ing which was most imperatively demanded was the removal of those evils, root and branch, by the removal of their cause. How, then, could the separation of discovery from pleading in the Court of Chancery have been best brought about ? In other