Page:Harvard Law Review Volume 12.djvu/181

161 DISCOVERY UNDER THE JUDICATURE ACTS. l6l words, how could the separation have been made with the least change in other respects, and consequently with the least disturb- ance and friction ? These questions will be best answered by sug- gesting one or two considerations afifecting bills. It has been seen ^ that a bill in equity, like the pleadings in the ecclesiastical courts, always in theory contained within itself, under the name of charges of evidence, the positions of the civil and canon law, and that discovery in the Court of Chancery, so far as it was of matters within the defendant's personal knowledge, consisted in theory wholly of the answers of the defendant, under oath, to the allegations and charges in the bill. In truth, however, the Court of Chancery never succeeded in naturalizing this foreign mode of extracting discovery. From an early period draughtsmen insisted upon inserting interrogatories also for the defendant to answer, and, though these at first received no recognition from the court, yet they constantly gained ground, while charges of evidence lost ground, until at length it was practically the interrogatories, and not the allegations and charges, that the defendant answered. It is true that every interrogatory had to be founded upon an alle- gation or charge, but that came to be regarded as a merely tech- nical or arbitrary rule, only the letter of which need be complied with ; and, therefore, it was held that an allegation or charge might be materially amplified by an interrogatory .^ Hence it became a rule that, while every allegation and charge must be fully answered, every interrogatory, if properly supported by an allegation or charge, must also be fully answered. Moreover, as every bill contained interrogatories, and as the interrogatories always covered all the ground covered by the allegations and charges, and additional ground also, the first part of the above rule became practically inop- erative, while the last part was always vital. For example, when an answer was excepted to for insufficiency, the part of the bill which was claimed not to be fully answered was generally, if not always, the interrogating part or some portion of it, — not the stating part or charging part. Lastly, it was provided by the general orders of Aug. 26, 1841,^ that a defendant should not be bound to answer any statement or charge in a bill unless specially and particularly interrogated thereto ; that the interrogatories should also be divided from each other and numbered consecutively; and that the inter- 1 See vol. xi. 208. 2 Ibid., note. » Orders 16 and 17, See Cr. & Ph. 371-2.