Page:Harvard Law Review Volume 12.djvu/183

163 DISCOVERY UNDER THE JUDICATURE ACTS. 1 63 or demurrer was to make it impossible for the plaintiff to compel an answer, and, therefore, impossible for him to proceed with his suit, unless he could get rid of the plea or demurrer by amending his bill. Hence It was that the only effect of overruling a plea or demurrer was that the latter went for nothing, and the defend-- ant was in the same situation as if he had not filed it, i. e., he had to answer. Hence, also, it was that a bill was the only pleading to which a plea or demurrer would lie, that being the only pleading which had to be answered by way of discovery. Would the abolition of pleas and demurrers have been objection- able? Certainly the abolition of pleas would not, for (to the dis- credit of the judges who had administered them be it said) they had proved a signal failure,^ and it was too late to attempt to reconstruct them. Whether some other means should be devised for affording that protection to defendants against giving discovery which pleas were designed to afford, would have been an independ- ent question. With demurrers the case was somewhat different ; for they served reasonably well the purpose for which they were designed, and they also served the useful indirect purpose of rais- ing the question whether the bill stated a good case, assuming it to be true. But, then, both of these objects could have been ac- complished in some other way (as they were in the civil and canon law), e. g., by a motion to take the bill off the file ; and this would have had the incidental advantage of being equally applicable to the answer, i. e., the defence. In what condition, then, would the pleadings as a whole have been left? Subject to two qualifications, they would have become just what the pleadings in the civil and canon law were ; namely, a series of affirmative pleadings on each side, continuing until the facts of the case were exhausted. One of the qualifications which must be made to this statement is, as has been already seen,^ that the bill would have contained the entire series of the plaintiff's pleadings, as the answer would of the defendant's. The other qual- ification requires some explanation. 1 " For the form of a very elaborate and difficult plea, one of the few pleas in the history of pleading that have escaped being overruled, see Appendix, 146." Drewry on Equity Pleading, 68. The form referred to is the plea in Saunders v. Druce, 3 Drewry, 140. While it is true that that plea escaped being overruled by the judge of first instance, yet the plaintiff appealed from the decision allowing the plea; and afterwards by consent the plea was overruled, and the defendant ordered to answer. See 26 L. T. 304. 2 See vol. jci. 207-8.