Page:Harvard Law Review Volume 12.djvu/189

169 DISCOVERY UNDER THE JUDICATURE ACTS. 1 69 reader is reminded that, prior to the statute in question, the dis- covery of documents was efifected in the same manner as any other discovery, while their production was effected by an order made upon motion. Moreover, as an order for production had to specify and describe the documents to be produced, and as it had to be founded exclusively on the admissions in the defendant's answer, it followed that the discovery had to be completed before the first step towards production could be taken. Production, therefore, in general, involved in it no element of discovery; but this was not absolutely true ; for it was sometimes impracti- cable to fix by the order for production the precise hmits of the production to be made, and when the precise limits were not fixed by the order, it was necessary that the production should be accom- panied by an affidavit showing that the terms of the order were complied with.^ What, then, was the change made by the statute? Before an- swering that question, it is necessary to advert to a species of dis- covery heretofore only incidentally alluded to,^ namely, discovery made after the hearing of the cause. The discovery hitherto con- sidered, including the production of documents, is always made before the hearing of the cause, and even before the taking of testimony. In theory, moreover, the discovery which may be thus obtained is all that is needed; for, though it is supposed to be obtained primarily for the purposes of the hearing, yet it may be used for all the purposes of the suit, whether at, or before, or after the hearing ; nor can a party refuse to give any particular discov- ery merely because it will not be needed until after the hearing. Nevertheless, as suits in equity are, comparatively speaking, very complicated, and as they are seldom finally disposed of at the hearing {i. e., at the first hearing), and as the most important part of the litigation frequently takes place after the hearing, it is often found difficult, and even impracticable, for a party to anticipate, before the hearing, all the questions which may arise in the prog- ress of the suit, and before its final termination; and hence it was found to be conducive to justice to permit parties to provide themselves with evidence as the occasion for it arose ; and, indeed, the reasons for this indulgence were found to be so strong that a rule, founded upon the highest considerations of policy, was not permitted to stand in its way, namely, the rule that no witnesses 1 See vol. xi. 212-13. s See vol. xi. 211.