Page:Harvard Law Review Volume 12.djvu/182

162 1 62 HARVARD LAW REVIEW. rogatories which each defendant was required to answer should be specified in a note at the foot of the bill, and that no others need be answered ; and the effect of this was held to be that a defendant who was not thus required to answer some specified interrogatory or interrogatories, need not answer the bill at all.^ Only two more steps were necessary, 'therefore, in order to separate discovery entirely from the bill and to make it optional with the plaintiff whether the defendant should answer by way of discovery or not, — namely, first, to separate the interrogatories from the bill ; secondly, to declare that a defendant's answers by way of discovery should be in law, as they were in fact, answers to the interrogatories, — not an answer to the bill. Moreover, these two steps were neces' sary to complete and round out what had been already done, and there is, therefore, no doubt whatever that they ought to have been taken, assuming that it was desirable to separate discovery from the pleadings ; and that, too, quite aside from the question whether interrogatories or positions constitute the better instru- ment for eliciting discovery, for it was quite too late to change from the former to the latter in the Court of Chancery. How, then, about separating the defendant's answer by way of discovery from his answer by way of defence ? That object would also be already accomplished ; for if interrogatories were filed by the plaintiff, the defendant would have to answer them by way of discovery ; if none were filed, no discovery would be given ; and in either case the bill would remain unanswered. If the defendant wished to set up an affirmative defence, of course he would answer the bill by way of defence ; otherwise he would have no occasion to answer it at all, and the pleadings would end with the bill. What incidental effects, if any, would the separation of discovery from the pleadings have had upon the latter ? Upon the bill, it would have had the incidental effect of putting an end to all charges of evidence for the purpose of discovery; upon the an- swer, it would have had the incidental effect of making it unneces- sary for the defendant to swear to it ; upon pleas and demurrers, it would have had the incidental effect of abolishing them entirely. If the reader is surprised at this last statement, he is requested to bear in mind that pleas and demurrers had only one direct object, namely, that of protecting the defendant from answering by way of discovery. Hence it was that the only effect of allowing a plea 1 Hughes V. Lipscombe, 3 Hare, 341, overruling Wilson v. Jones, 12 Sim. 361.