In what circumstances will a plaintiff not be able to prove for discovery that there is no defence to his claim?

In many cases the plaintiff may not be able to prove until after examination for discovery that there is no defence to his claim. If Rutherford v. Taylor is a correct interpretation of this rule, a plaintiff in such a case would never be able to avail himself of this rule.

Tracing back the origin of "election" as used in these cases it would appear to come from the case of Fowler v. Lee (1876) W.N. 86. It was said in that case that the district registrar after expressing doubts whether in an action commenced before The Judicature Acts any order could be made under the new rule, went on to say that at any rate he would not make the order after issue joined. In the argument before Denman J. no mention of this latter remark was made by counsel for either party and is not mentioned by the judge. The argument of counsel on the appeal was that his client had a cross-action which was either set-off or counterclaim and he wished leave to file a counterclaim. Denman J. dismissed the appeal and gave leave to counterclaim. There is nothing in the judgment to suggest that the dictum of the district registrar was approved or adopted. There is no other English case that I have found which fixes the cut-off date at the close of pleadings for making the application.