to deter counsel from resorting to equity without good cause. This being the case, any tendency of the court to discourage the exercise of its equity powers seems unfortunate, especially as equity practice in Massachusetts still suffers from the old traditions of limited jurisdiction.

In Colgate v. Compagnie Francaise, etc.,1 Wallace, J., said:

"The jurisdiction in equity for discovery originated in the absence of power in courts of law to compel a discovery by their own process, either by means of the oath of a party or by the production of deeds, books, and writings in his possession or control. But it does not follow, because courts of law now have power to extend such relief, that a court of equity should forego the exercise of an ancient and well-settled jurisdiction. No principle is more vigorously asserted by courts of equity than that they will not yield a jurisdiction once legitimately exercised, because an enlargement of the ordinary powers of courts of law has rendered a resort to equity no longer necessary. There can be no ebb and flow of jurisdiction dependent upon external changes. Being once legitimately vested in the court, it must remain there until the legislature shall abolish or limit it; for without some positive act the just inference is that the legislative pleasure is that the jurisdiction shall remain upon its old foundations. Story, Eq. 64. Accordingly, it has been frequently held that a court of equity should not refuse to entertain a bill for discovery, although, by the enlargement of the jurisdiction and remedies exercised by courts of law, similar relief could be obtained by the complainant in his action at law."

CAN INTERROGATORIES FOR DISCOVERY BE INSERTED IN A BILL FOR RELIEF?

The question of equity practice relative to discovery which seems to call for special discussion is the question whether a plaintiff can still seek discovery as an incident in a bill for relief, a question which has assumed some practical importance since the recent decision in Pearson et al. v. Treadwell et al.,2 that an answer in equity to a bill for relief which does not contain a prayer for discovery is merely a pleading, and exceptions no longer lie to it for insufficiency. This decision has settled a doubtful point in accordance with the general equity practice outside of Massachusetts as to answers not under oath. The practical effect of

1 23 Fed. Rep. 82.

$ 179 Mass. 462.

Cf. Chancery Rules of 1884, XVI., XVII., XVIII., and XXI., 136 Mass. 606-607.

the decision, however, is to leave a plaintiff entirely dependent on his right to discovery to obtain admissions of formal matters and to define the issues; and as interrogatories cannot be filed until after answer,2 and an answer is not due until a month from the return day of the writ,3 a plaintiff after filing his bill must wait a month and a half before he can begin to interrogate unless he is allowed to insert interrogatories in his bill. From the point of view of the court as well as of the plaintiff, such delay seems undesirable, especially as it seems probable that under the ruling in Pearson v. Treadwell answers in equity will gradually develop into mere general denials.

In 1883, however, a statute was passed providing that "an answer except to a bill for discovery only shall not be made under oath,"4 and in Amy v. Manning, Field, J. (later Chief Justice), said: "Since the passage of this statute (1883, c. 223), by the provisions of § 10, if the bill asks for relief, the answer cannot be sworn to, and discovery can only be had by interrogatories to the defendant as in actions at law." The ground for this view is the position of the word "only" and the use of the word "shall" in the clause above quoted from the statute. This clause, however, does not necessarily call for this construction; it is just as intelligible if construed as a direction that an oath is required only when discovery is prayed in the bill and then only to that part of the answer giving discovery. The construction here suggested may seem strained, but the following remarks seem to show that the legislature has made some straining necessary. If the view of Chief Justice Field was correct, then the clause in question had the effect of repealing the provision in the Public Statutes which provided that "Discovery may be sought by inserting a prayer therefor in the bill, petition, or declaration, or by interrogatories." Since the passage of the Revised Laws of 1902, which re-enacted

1 Having been of counsel for the excepting party in Pearson et al. v. Treadwell et al., the writer wishes to disclaim any intention of criticising that decision adversely; the object of the present discussion is merely to set forth clearly the present conditions of equity practice.

2 R. L, c. 159. § 15.

3 Chancery Rule VIII.

4 St. 1883, c. 223, § 10.

$149 Mass. 487, at p. 491. See also Aldrich, Eq. Pl. & Pr., 2d ed., pp. 150, 365, and Gray, C. J., in Ahrend v. Odiorne, 118 Mass. 261, at p. 269.

P. S., c. 151, § 7. Cf. Parker v. Simpson, 62 N. E. Rep. 401, in which counsel attempted to raise the question, but the court declined to pass on it. See also Bliss v. Parks, 175 Mass. 539.

both the clauses above quoted,' it would seem that both clauses must be given equal force, and that the legislature answered the view of Chief Justice Field by providing that discovery may be sought in a bill for relief.

From the point of view of policy the practical importance of the right to seek discovery in a bill for relief is that the exercise of this right may go far toward preventing the growth of the practice of making non-committal answers. One great merit of equity pleading hitherto has been its specific character, for, as a learned judge once said to the writer: "A well-pleaded equity case tries itself on most points." The practice of making full and specific answers was the result of the requirement of sworn answers which were open to exception for insufficiency. Now that the requirement of an oath and the liability to exception are both removed, and under existing law statutory interrogatories cannot be filed until after answer, there appears to be nothing but traditional practice to prevent answers in equity from becoming mere general denials.2 The insertion of interrogatories or a prayer for discovery in the bill, although it would have the undesirable result of lengthening the bill and answer, would yet counteract the tendency of defendants to put everything in issue, for a defendant would be less likely to deny in the pleading part of his answer what he would have to admit in his answer to the interrogating part.

It may be said that the combination of pleading and discovery in one answer tends to confusion in the law; but the law seems still to allow a plaintiff to call for both, and, in the absence of a more satisfactory provision, the duty to give both seems to afford a valuable protection to the present specific character of equity pleading in Massachusetts.

CAN A PARTY GET DISCOVERY BOTH BY BILL AND BY STATUTORY PROCESS IN THE SAME CASE?

If the foregoing remarks are sound, this question arises. The first section of Chapter 159 of the Revised Laws, except so far as it is controlled by other sections, provides for all the usual

1 R. L., c. 159, § 12, provides that "discovery may be sought by inserting a prayer therefor in the bill, petition, or declaration, or by interrogatories."

§ 13 provides that " an answer except to a bill for discovery only shall not be made under oath."

2 Cf. 11 HARV. L. REV. 206, and Chancery Rule VII., 136 Mass. 604.

equity process, including that for discovery. Among the sections containing rules of procedure, appear the following:

SECTION 8.

"suits in equity may be commenced by bill or petition, . . or . . . by a declaration in an action of contract or tort . . ." Discovery may be sought by inserting a prayer

...

66

66

SECTION 12. therefor in the bill, petition, or declaration, or by interrogatories." SECTION 13. an answer except to a bill for discovery only shall not be made under oath . . . answers to interrogatories in a bill for discovery shall be made within such time as the court orders, and questions arising thereon shall be determined by the rules applicable to bills for discovery." SECTION 15. "Either party may, at any time after the filing of the answer in a suit in equity, file interrogatorics . . . in the manner and subject to the provisions of chapter one hundred and seventy-three relative to interrogatories in actions at law."

The above quotations seem to show that the statutory interrogatories are provided in addition to, and not in lieu of, discovery in equity, and that, therefore, a plaintiff may interrogate in his bill for relief, and a defendant may interrogate by cross bill for discovery, and on the coming in of the answer to the original bill each party may of right file further interrogatories under section 15. The second use of the word "or" in section 12 does not appear to give the court discretion to require an election between discovery under section 12 and discovery under section 15. Section 15 is specific in giving the absolute right to discovery after answer without regard to previous proceedings. Of course, the whole equity jurisdiction is to a certain extent discretionary; but this general doctrine is hardly intended to enable a court to exercise its discretion by denying to a party cumulative rights clearly given by statute.

Neither does the fact that, at a time when equity jurisprudence was unfamiliar in Massachusetts, equity procedure was expected to be superseded in practice by statutory procedure, affect the construction of the present statutes, for no intention appears in the statutes to abolish the equitable rules.

Again in equity neither party can file statutory interrogatories until after the answer to the bill is filed, whereas at law interrogatories may be filed by the plaintiff after entry and by the defendant after answer. This postponement of the plaintiff's right in equity has appeared ever since 1862.1 The only intelligible reason for

1 St. 1862, c. 40.

this distinction between the right at law and in equity appears to be that the legislature in 1862, appreciating that under the existing equity practice some of the issues would be defined by the bill and sworn answer, postponed the plaintiff's right to statutory interrogatories in order to avoid the cumbering of the record and annoyance of the court and parties by questions as to matters which would be admitted in the answer to the bill, and in order to allow the statutory interrogatories to be directed to the issues as defined by the bill and answer, thus giving the right to discovery both by bill and interrogatories.

It may be said, perhaps justly, that a fair system does not require these cumulative rights, and that any second opportunity to interrogate should be at the discretion of the court. The subject might be regulated by rule of court, but, in the absence of such rule, the law seems to be as above stated.

The result of this discussion is that there is nothing in the statutes either requiring or authorizing the court to decline to exercise the equity jurisdiction in any case in which discovery is allowable under the general principles of equity procedure. This jurisdiction is entirely independent of the interrogatory statutes, and, per contra, the statutory jurisdiction for discovery, both at law and in equity, seems to be independent of the equity jurisdiction.

CONCLUSION.

In criticising the system I have expressed the constructive view of its logical development as distinguished from the destructive or literal view naturally pressed by all litigants who are inconveniently interrogated. There are, however, three general considerations of practical policy which call for careful administration of the system.

In the first place, if one party to a suit is compelled to disclose his knowledge of the details of a case, there is danger of subjecting him to the perjury of his opponent or his opponent's witnesses. Vice-Chancellor Wigram said: '

1

"Experience has shown - or (at least) courts of justice in this country act upon the principle that the possible mischiefs of surprise at a trial are more than counterbalanced by the danger of perjury, which must inevitably be incurred when either party is permitted before a trial to know the precise evidence against which he has to contend."

1 Wigram on Discovery, 1st Am. ed., p. 263.