Page:Harvard Law Review Volume 12.djvu/188

168 l68 HARVARD LAW REVIEW, statute respecting the enforcement of discovery, namely, by giving defendants a new method (in addition to the old one) of compelling discovery by plaintiffs, and by giving to both plaintiffs and defend- ants a new method (in addition to the old one) of compelling the discovery and production of documents by the other. Prior to the statute, as has been seen,^ the only method by which a defendant could compel a plaintiff to give discovery was by serving upon him a writ of subpcena, and the only way of obtaining a writ of subpoena was by filing a bill. In the nature of things, however, neither a writ of siLbpoena nor a bill was necessary, and therefore each of them caused an unnecessary expense, and some unneces- sary delay; but these seem to have been the only objections to them. There was no reason, in the case of any bill for discovery, why the interrogatories should be separated from the bill; for, as the bill would be filed for the sake of discovery only, there could not be any question whether the plaintiff would wish to file inter- rogatories or not. Nor could it be material whether the defend- ant's answer was to the bill or to interrogatories separated from the bill, as the answer could in no event contain anything but discovery, and so there could be no question of separating discovery from de- fence. The only thing needed, therefore, was that a defendant should be enabled to interrogate a plaintiff directly upon the alle- gations in the answer constituting the defence to the bill. Accordingly, it was enacted by sect. 19 that any defendant might, after sufficiently answering the bill, and without filing any bill for discovery, file interrogatories for the examination of the plaintiff, and deliver a copy thereof to the plaintiff, and that the plaintiff should answer the same as if contained in a bill for discovery. The words " after sufficiently answering the bill " were introduced to preserve a rule which had always existed, namely, that a defendant must give discovery to the plaintiff before receiving discovery from him. The section, however, contains another clause (which shows to how great an extent the commissioners were under the domina- tion of old ideas), namely, to the effect that there should be pre- fixed to the interrogatories a concise statement of the several subjects upon which discovery was sought. This evidently pro- ceeded upon the idea that, if a bill was not to be filed, a substitute for it must be provided. In respect to the discovery and production of documents, the ^ See vol. xi. 216.