Page:Harvard Law Review Volume 12.djvu/191

171 DISCOVERY UNDER THE JUDICATURE ACTS. 17 1 by the charge of documents, and the interrogatory as to documents contained in the bill. In the case of an affidavit they must be prescribed directly by the same authority as that by which the pro- duction is ordered; and, as they should be the same in all cases, they may be prescribed once for all by fixing the form of the nega- tive part of the affidavit to be made by every one who is ordered to produce documents. Nor has an answer any advantage over an affidavit in respect to the affirmative part, i. e., the part in which the possession of certain documents is admitted, and the docu- ments are scheduled and described ; for, in case of either an answer or an affidavit, the party making it must at his peril see that it is sufficient, z. e., if it is not sufficient, he must make a fur- ther answer or affidavit, and also pay costs. Moreover, an affidavit made at the time of production has this advantage over an answer made before production, namely, that the former will always serve every purpose that can be served by the latter, while the converse, as has been seen, is not always true.^ Accordingly, in the Master's office the common course was for the Master to direct a production of documents by all parties with the usual affidavit, before any interrogatories were brought in. It might happen, however, when the production was made, that the adverse party was not satisfied with it, because he believed that the affidavit which accompanied it, though sufficient upon its face, was either false or failed to disclose the whole truth, and therefore he wished further to probe the conscience of the party making the affidavit; and, in that case, his course was to bring in interroga- tories for the latter to answer. These interrogatories would of course be special, being suggested by and adapted to the special circumstances of the case. It will be seen, therefore, that when- ever, before the hearing, for the purpose of obtaining further dis- covery as to documents than is affi^rded by the answer to the original bill, the plaintiff would amend his bill by inserting a special charge and a special interrogatory as to documents, he should, after the hearing, for the purpose of obtaining further dis- covery as to documents than is afforded by the usual affidavit, bring into the Master's office special interrogatories as to docu- ments. And it ought to be clearly understood that, while an affi- davit as to documents may well supersede an answer to a general charge or general interrogatory as to documents, it cannot at all supersede an answer to a special charge, or to special interroga- 1 See supra, page 169.