"To arrange for having local land-banks or offices established, through which all receipts and payments shall pass, in connexion with any laud held under the Improved Land Tenure, on account of the reserved rent, or of the land debentures, or of any purchase-money for the land."

We are certainly not prepared for so extensive and sweeping a change; but as this deeply interesting question is one of the most important that could engage the attention of calm thinking men, we propose to return to the consideration of it.

REPORT OF COMMISSIONERS ON PLEADING, &c. (ENG.)

(Continued from page 206.)

We have already pointed out the advantages which have been gained by the introduction of the new rules. The system of pleading, which had been imperfect from its partial application to particular actions, was made more uniform and consistent; and in all those cases in which issues of fact were raised, much expense has been spared by the questions in dispute being accurately defined, by the saving to the parties in consequence of facts being admitted on the record, and, in many instances where the question turned upon a point of law, by the much less expensive appeal to the Court in the first instance, without the intervention of a jury to try facts which were never disputed. But although a great gain in point of certainty and distinctness was thus introduced, it must be admitted that the opportunities for captious objections have increased. We hope to retain these advantages without the concomitant inconveniences, by the remedies which we are about to propose.

There remains to be noticed the fifth and last head of objection to the present practice of pleading, namely, the power which a party has on observing a defect in his adversary's pleading to pass it by till after trial, and afterwards to raise it if defeated on the trial; but as this proceeding cannot be resorted to until after the trial has taken place, it will be more convenient to dispose of it when we shall have arrived at that stage of the inquiry in a subsequent part of this Report.

Before proceeding to point out the alterations which we think necessary, we must deal with a question which has been lately agitated; viz., whether pleadings, instead of being prepared by the parties themselves, should be settled, upon the verbal statements of the parties, by a public officer specially appointed for that purpose. Such a course would, in our opinion, be highly inconvenient.

The parties to a suit are now at liberty to state their own case in such manner as they may consider most favourable to themselves, subject to the peril of their proceedings being objected to by their adversary if wrong or irregular. It has been suggested, that a public officer should be appointed to act as a kind of assessor or moderator between the litigant parties, and settle and arrange the issues between them, whether of law or fact. We do not think it at all likely that such an officer would perform his

duty better or more satisfactorily than the present private pleaders, who, been directly retained by their clients, are naturally actuated by more zeal and anxiety for their interest than a mere public officer would be. To ascertain and state the disputed point, whether of law or fact, is the aim and object desired, and surely this can as well be done by one party stating his case and the other answering it as by a third person taking the statement and answer, and dealing with them as an assessor or moderator.

The preparation of the pleadings as at present (although they are a very important part of the suit) is not liable to objection on the ground of expense. The pleaders who usually draw them are most moderately paid for their skill and labour, their fees being generally proportioned to the length of the draft, which is no criterion of the amount of learning or trouble bestowed on it. The proposed plan would greatly increase the expense, not only to the suitor but to the public. Several officers would be required, and, as the only persons fit would be men intimately acquainted with the law in all its branches, their salaries would necessarily be high. Each party to the suit would be obliged to lay his case before the officer, or instruct a pleader to draw the pleadings, and then refer them to the officer; and, as questions would constantly arise as to the form of the pleadings, the parties would frequently deem it necessary to attend before the officer with their pleaders or with counsel. Appeals would constantly be made to the Court from the decision of the officer by a party who might consider the issue in law or fact to be stated unfavourably for him. Upon the whole, we are of opinion that the old policy and principle of the common law, which leaves parties to act for themselves, should be maintained, and that the true reform will be, to do away with technical and formal requirements, and make the mode of objection to uncertainty, duplicity, or argumentativeness as direct and as little dilatory and expensive as possible, leaving the question of substantial right to the adjudication of the Court and jury according as the question to be decided shall be one of law or of fact.

We proceed to discuss the remedies which we have to propose for the defects which we have pointed out.

Upon reference to the statutes passed to remedy a too rigid adherence to forms, viz. 32 Henry 8, c. 30, 18 Eliz. c. 14, 21 Jas. 1, c. 13, 16 & 17 Chas. 2, c. 8, 4 & 5 Anne c. 16, 5 Geo. 1, c. 13, it will be found that a distinction is drawn between what is styled the "very right of the cause and the matter in law appearing on the pleadings" and "formal defects, imperfections, omissions, defaults in form, and lack of form."

We propose to give effect to this distinction, but by adopting a different course from that pursued by these statutes. The mode therein adopted was not to declare that such "formal defects, imperfections, omissions, defaults in form, and lack of form," as were therein referred to, should cease any longer to be of consequence or fatal; but, on the contrary, the necessity for the form was continued, by the statutes merely enacting that the defect should be

specially expressed in the demurrer, and that after a further step was had in the cause no objection could be taken on account of it.

Now what we propose is, that the necessity for the form be absolutely done away with, and that every declaration and subsequent pleading which shall clearly and distinctly state all such facts as are necessary to sustain the action, defence, or reply, as the case may be, shall be sufficient, and that it shall not be necessary that the facts should be stated in any technical or formal language or manner, or that any technical or formal statements should be used; and that judgment shall in all cases be given according "to the very right of the cause and the matter in law appearing on the pleadings;" and that no formal or technical defect, imperfection, or omission, default in form, or lack of form, shall invalidate the pleading. To give effect to which principle, we further propose, that, except in the Cases more particularly specified presently, no pleading shall be deemed insufficient for any defect upon which objection can now be taken on special demurrer only.

It will be seen that this at once gets rid of all those objections which can only be taken on special demurrer, and that every pleading will be judged of according to the very right of the cause and matter in law; and this well-understood distinction between what is good upon general demurrer, although bad on special, will afford to all persons engaged in the practice of the law a great and most convenient assistance in practically carrying into effect the new provisions; the more so, as the language of the enactment above suggested has already obtained a recognized interpretation. 1

We believe that this provision, simple as it seems, will go to the root of the evil complained of. It will at once put an end to all captious objections in respect of trivial slips, words left out, formal matter omitted, and other faults, which, although quite immaterial to the merits of the case, and of no prejudice to the opposite party, are, nevertheless, at present, ground of objection by special demurrer.

With a view effectually to purify the pleadings from fictions and needless averments, we propose that all statements which need not be proved, such as the statement of time, quantity, quality, and value, where these are immaterial, the statement of losing and finding, and bailment in actions for goods or their value, the statement or acts of trespass having been committed with force and arms, and against the peace of our lady the Queen, the statement of promises which need not be proved, as promises in indebitatus counts, and mutual promises to perform agreements, and the like statements, be omitted; and that where any clearly unn cessary statement is vexatiously made, it may be struck out by the court or a judge, with or without

costs.

While, however, we think it necessary to get rid of all requirements of a merely formal character, it must be obvious to every one that some rules are absolutely necessary for the attainment of what has been shown to be the proper object of pleading. A power must exist of compelling parties to be clear and distinct in their statements, and there

must be a remedy against ambiguity, whether intentional or not. So also, a rambling pleading, mixing up several grounds of action or defence, and composed of different matters of fact and law, would be most objectionable. And it is matter of obvious convenience, in order to avoid prolixity, that the statement should be one of facts, and not of the evidence of facts; or, in other words, that proper provision should be made against uncertainty, duplicity, and argumentativeness, when they tend to embarrass the opposite party in the conduct of his case.

A mode has been suggested for providing against these objections; viz., that no special demurrer shall be permitted until the objecting party shall have given notice to his opponent of the specific objection, and required him to amend his pleading, which he should be at liberty to do without payment of costs.

The objection to this mode of remedy is, that a question would always arise, whether the pleading objected to was sufficiently amended or not. We are satisfied that a provision of this kind would only lead to an application to the court or a judge at a later period than that at which we propose to have it made; and as to the amendment without costs, the notice of objection would of necessity lead to costs; besides, defendants would continually delay proceedings by unfair pleading if they were at liberty to amend them as a matter of right.

The plan which we propose is this: that where a party objects that a pleading is, by reason of duplicity, argumentativeness, or uncertainty, defective in a particular calculated to embarrass or mislead, he shall take out a summons before a judge, in which the defect of which he complains shall be specified. Upon the hearing of the summons, if the judge is of opinion that the pleading is sufficient in the particular complained of, his decision shall be final; if he is of opinion that the pleading ought to be amended, he shall so order. In the event of the party pleading refusing to amend, his opponent shall be at liberty to demur, stating as the ground of demurrer the defect of which he complained in the summons; and if the court shall be of the same opinion as the judge, they shall be at liberty to give judgment against the party pleading, or give leave to amend on such terms as they think fit to impose, and upon such judgment no error shall lie in respect of any formal objection. This mode of remedy is much preferable to that by special demurrer; it has for its direct object that which should be the object in such a case, the amendment of the defect complained of. To hold that a pleading is bad, because more or less obscure, seems unreasonable, unless the party pleading will not amend, and clear up the obscurity when it is pointed out to him. The application to a single judge by summons is attended with very trifling expense, and we hope will at a future time be still less expensive. The judgment of the judge will not be final as to the result of the cause. If he decides against the party complaining, he only compels him to answer the pleading as it stands. If he decides against the party pleading, his decision is not final, if the party thinks fit to refuse to amend. In truth we believe

in all probability confine himself to the denial of the performance of some condition which he really believes has not been performed.

As to pleas in denial of the matters alleged in the declaration or statement of the plaintiff, we think that the defendant ought to be at liberty to use the general issue where now applicable, or, if he prefers it, to traverse one or more material allegations separately. This would lead to conciseness, and to a diminution of expense, as it sometimes happens that the general issue denies several facts when a portion of them only is in dispute.

We propose also that the plaintiff shall in all cases be at liberty to traverse the averments in the plea by a general denial, but shall also retain the right to single out and deny one or more.

We also propose that the same rule should apply to traverses of the replication, rejoinder, and all subsequent proceedings.

In order, however, to protect the parties against the costs of proof of facts unjustly put in issue by a general traverse, we think that either party ought to be entitled to require a finding by the jury as to the truth of the several allegations put in issue, and that costs ought to be awarded accordingly, as though the findings had been on different issues.

With the same view of preventing needless prolixity, we recommend the abolition of the form of pleading known as the special traverse.

The origin and object of the special traverse is explained by Mr. Sergeant Stephen in his "Treatise on the Principle of Pleading in Civil Actions" (p. 191), and it is described by him as a barbarous formula, and a relict of the subtle genius of the ancient pleaders. It has been discountenanced by the courts, and is disapproved of by Mr. Sergeant Williams, in the first edition of his Notes on Saunders' Reports.

The principal use of this form of pleading is to evade the objection of argumentativeness when a qualified denial only of an allegation is necessary or advisable, and to raise a question of law upon the record which might otherwise have been involved in an issue of fact.

The form of the special traverse comprises, first an inducement or statement of new matter, which must be an indirect denial of the fact intended to be traversed, and, secondly, the conclusion or traverse, which is in these words, "without this, that," &c. (denying directly the fact intended to be disputed). If the inducement stood alone, the plea would be open to objection for argumentativeness, because it only shows by inference or indirectly that the allegation intended to be denied could not be true; the direct or special traverse therefore is added, to avoid such an objection.

The rules which govern the form and application of the special traverse are so technical and artificial as to perplex the practitioner; for instance, the inducement must not be a direct denial, but it must be a sufficient indirect one, and it must not be in confession or avoidance. The rules also as to when the inducement may or may not be traversed, and how the pleading may be answered by the opposite party, are extremely difficult and abstruse. It appears to us, that if our other recommendations as

to pleading were adopted, all the advantages (if there be any) which attach to the substance of the special traverse may be attained without the necessity of adhering to the form.

New assignments also are at present too often abused so as unnecessarily to lengthen the proceedings. The necessity for them arises in two ways; first, where the plaintiff complains of one of several trespasses in a form so general that it is applicable to any of them, and a trespass in respect of which the action is not brought is either by mistake or design justified by the defendant; secondly, where the defendant pleads a justification of the trespass complained of, but the plaintiff maintains that there has been an excess beyond what the circumstances justify; for instance, when the defendant justifies committing an assault in self-defence, and the plaintiff means to rely on a violent beating beyond what mere self-defence required. With respect to the first, it is possible that the defendant may have been misled by the form of the complaint, and so long as this is the case he cannot be prevented from pleading an answer to any trespass which corresponds with the plaintiff's description, and which the defendant may in fact have committed. With respect to the second, the defendant must be at liberty to answer the plaintiff's prima facie case, and cannot justly be held to surmise and answer a complaint of excess in the exercise of his legal right, to which excess his attention has not as yet been directed by the form of the complaint. In each case it becomes necessary for the plaintiff to assert, in answer to the plea, the other trespass or the excess of which he complains, and the defendant must have an opportunity of answering that assertion. This seems capable of being effected by short and simple statements. But in practice instances have occurred of great and unnecessary prolixity and length of pleading in consequence of new assignments. For instance, to an action of trespass the defendant pleaded four defences: first, a right of way; second, a right of common; third, a right to take wood for repairing his house; and, fourth, a right to take wood for his fire. The plaintiff new assigned as to each plea that he brought his action for trespasses different from those justified in that plea; the defendant thereupon pleaded to each new assignment the three defences other than that contained in the plea to which there was the new assignment, and so the pleadings went on until each plea was repeated four times over in almost the same identical forin of words. There is no real necessity for this. A defendant need never repeat a plea, nor need a plaintiff new assign separately to each plea. Suppose a defendant, in answer to an alleged trespass, asserts, first, a right of way, and, second, a right of common; if he pleads both, and the plaintiff complains of something not justified by either or both, he ought to say so, and not say separately to each plea that he complains of something not justified thereby. We recommend, therefore, that, whatever number of pleas a defendant may plead to the same cause of action, there shall be but one new assignment, which shall state that the plaintiff proceeds for causes of action different from or beyond all those justified, and the defendant shall not

be at liberty to plead to the causes of action newly assigned any justification which he has already pleaded. The consequence will be, that if the defendant pleads but one defence at first, and the plaintiff new assigns, the defendant may then plead his next defence, and so on, putting each defence once and once only on the record; but if the defendant plead all his defences in the first instance, which is the usual course, the plaintiff will new assign once for all, and the defendant will of necessity be driven to deny the causes of action newly assigned, or pay money into Court, or suffer judgment by default.

If the description given in the declaration were so precise as to prevent any possibility of the defendant's mistaking or pretending to mistake the cause of action, no necessity for a new assignment would arise. For example, if a plaintiff were to state that the defendant trespassed on his close called Blackacre in the parish of A, a plea justifying under a right of way which only existed in Whiteacre, or any place not answering to the description in the declaration, could not apply to this declaration, and therefore might be denied without a new assignment; but if the declaration did not describe the close so as to show it could not be the place over which the defendant has the right of way, the plaintiff would be driven to a new assignment. A similar remark applies to the defendant's pleas. If they are so precisely defined as to show the exact extent and nature of the cause of action intended to be answered, the plaintiff would not be obliged to resort to this form of pleading.

With this view we have proposed that the defendant in any action for a trespass to person or property shall be entitled to particulars identifying the cause of action for which the plaintiff is proceeding, and the plaintiff to particulars of any justification pleaded by the defendant; and that a Judge may order plans of the locus in quo to be exchanged between the parties. The information thus obtained will, we believe, in the great majority of cases render a new assignment unnecessary.

We should certainly have recommended the abolition of this mode of pleading, but that we felt the same difficulty which occurred to the former Commissioners in attempting to do so, as some cases might be suggested where injustice would be done, even where particulars are given, if the plaintiff were prevented from new assigning; as when the whole case turns upon the manner of doing any particular act, the degree of force used, or the precise limit of a right. It would sometimes be inconvenient, if not impossible, for the plaintiff to complain of the excess only for two reasons; first, because it would be unreasonable to require a plaintiff to assume that the defendant intends to plead any particular plea of justification, as, for instance, to state that the defendant had a right of way over his close, but that defendant trespassed in other parts of the close, inasmuch as the defendant might never intend to claim the right at all; secondly, it might happen that the plaintiff fairly wishes to contend that the defendant had not the right to do the act, and if he had, that he exceeded his authority. Thus he might deny the plaintiff's right to arrest and imprison him,

and also contend that, admitting the right, the defendant was guilty of unnecessary violence when arresting him, and imprisoned him for too long a period. We trust, however, that the restriction which we have proposed to this description of pleading, and the more extended right of obtaining particulars, will effectually do away with the present abuse.

We have next, with the view at once of shortening the pleadings and getting rid of a source of objections purely technical, to propose an alteration in the mode of stating the cause of action in cases of libel and slander.

Where the libel or slander states in direct terms that which without any explanation is by law the ground of an action, the difficulty does not arise; but when, as is more frequently the case, particularly in libel, the expressions used are only slanderous, or actionable in connexion with other precedent facts, it is necessary to introduce such facts in the declaration, and to show that the expressions complained of were used in reference to the previ-, ous allegations, so that the meaning imputed by the plaintiff to the expressions may not only be explained but appear to be warranted. The meaning so assigned in the declaration by averment of the meaning or application of the words, which is called in pleading language the inuendo, cannot, according to the present rule, enlarge the sense of the words used, the office of the inuendo being only to explain them with reference to the other averments in the declaration.

The technical mode of effecting this is, first, to state the facts in reference to which the publication is actionable; secondly, to show that the words or libel were published of and concerning such facts; thirdly, to connect the words or libel with such previous facts by means of proper inuendoes; thus importing into the words a slanderous or actionable quality.

It may not appear at first sight difficult to comply with these requirements; but the contrary is the fact: numerous instances might be given where the judgment has been arrested or reversed because the inuendo, or meaning ascribed to the words used, which is the essence of the cause of complaint, has not been, in the opinion of the court, supported by the prefatory statements, although the jury must have found that the meaning alleged was intended by the defendant.

In a very modern volume of the reports of the Court of Queen's Bench, three consecutive cases on this subject occur, which occupy no less than forty pages, and must have consumed a considerable portion of time in discussion, in one of which the judgment was arrested, and in the other two the plaintiff succeeded. In the same year a similar point was discussed at great length in the House of Lords on a writ of error from the Court of Exchequer Chamber in Ireland.

In the case of Alexander v. Angle, the introductory averment was, that the plaintiff was a liverystable keeper, and that one T. P. had become bankrupt, and the plaintiff was about to prove a debt justly due to him under the commission of bankrupt. The words complained of were, "You