Page:Harvard Law Review Volume 12.djvu/194

174 1 74 HAR VA RD LA W RE VIE W. rowed from them. Among the items of business also which the statute ^ authorized, at the option of the judges, to be done at chambers, were applications for the discovery or production of doc- uments ; and accordingly, a few days after the act went into opera- tion, namely, Nov. lO, 1852, the Master of the Rolls and the three Vice-Chancellors respectively announced ^ that all such applications must be made at chambers. Consequently, every order for dis- covery and production under sects. 18 and 20, or for production under the old method, subsequently to Nov. 10, 1852, was obtained by means of a summons issued by the judge to whose court the cause was attached at his chambers, and served upon the adverse party, whereas, previous to the statute in question, all orders of every description had to be obtained by motion in open court. One object in making this change appears to have been to save expense by getting rid of the necessity of employing counsel. This, however, was more a seeming than a real advantage ; for the reason why it is not necessary to employ counsel at chambers is that business done there is not supposed to require an argument; and whenever there is to be an argument, counsel must be em- ployed, whether it be in court or in chambers. Moreover, what- ever may be the merit, on the score of economy, of a summons from chambers as compared with a motion in open court, nothing can be said on that score for the method introduced by sects. 18 and 20 of ch. 86, as compared with the old method ; for the latter did not involve the necessity of making any application to the court, unless there was a contest, and so an argument was required. In- deed, discovery never involved an application to the court, unless exceptions were taken to the answer for insufficiency, and were not submitted to by the defendant; nor did production, unless the defendant refused to produce some of the discovered documents, and the plaintiff insisted upon their production. Under sects. 18 and 20, on the other hand, both discovery and production always had to be obtained under an order, whether there was any contest or not; and though it has been said ^ that both were obtained under one order, yet that was only when there was no contest in regard to either, i. e., when the usual affidavit made by the one party, and the production or non-production by him in accordance with it, were acquiesced in by the other party: and in regard to production in particular, the order only required the production of such docu- 1 Sect. 26 2 For the announcement made by Turner, V. C, see 9 Hare, Appendix, 48, 49. 8 Supra, page 173.