DISCOVERY UNDER THE JUDICATURE ACTS. 1 75 ments as the party by his affidavit did not object to producing. As to all others, therefore, a special application had to be made, and of course it involved the employment of counsel on both sides. It would seem, moreover, that discovery and production of docu- ments under sects. i8 and 20, unmodified by ch. 80, would have been more rather than less expensive than under the old method, — more expensive also than it need have been. It is not obvious, for example, why the order just referred to was supposed to be necessary. As the discovery and production which it secured were only such as the party obtaining the order had an absolute right to, a notice from him to the adverse party that he required such discov- ery and production would seem to have been all that was needed. By the third order of June i, 1854,^ it was provided that the course of proceeding in use as to the production of documents ordered to be produced before the hearing of a cause shall extend and be applicable to the production of documents ordered to be produced after the hearing. What changes did this rule make in the method of obtaining production of documents after the hearing of a cause? First, it required the affidavit of documents to precede their production in- stead of being contemporaneous with it; secondly, it took away the right to supplement, by means of interrogatories, the discovery obtained by the affidavit. Both of these changes, moreover, were for the worse. As to the second, this is emphatically true; for, while the rule professed to place production after the hearing on the same footing with production before the hearing, in fact it placed it upon a much worse footing, as it was not possible for a party after the hearing, to supplement by answer the discovery obtained by affidavit, and, therefore, the right to file interrogatories being taken away, it was not possible to supplement it at all. It would seem, therefore, that the rule of June i, 1854, ought to have been precisely the reverse of what it was, i. e., that it ought to have provided that the method in use of obtaining the produc- tion of documents after the hearing should extend and be appli- cable to production before the hearing. The rule would then have accomplished two important objects, for it would have supplied the omission, in sects. 18 and 20, of authority to file interrogatories, and it would have put upon those sections their true interpretation as to the relative time of making the affidavit of documents. C. C. Langdell. 1 See 18 Jur. Part II., p. 199.
