power of amendment which could alone counteract the evil.

The effect of the new system was an enormous multiplication of pleas, and a consequent increase of expense and complication of nisi prius records, which embarrassed the trial of causes and led to continual failures of justice, either by special demurrers for faults of form, or by defect of evidence on points not the real matter in controversy between the parties (a). There was another and perhaps a greater evil still: that, as there was no power of compelling parties to submit matters of debt or account to speedy adjudication by arbitration, one party in such cases was forced to bring an action as his only available remedy; and yet, when it came down to trial, the judge found in numerous

(a) In 1850 the writer called attention to the evil in a pamphlet, in which he thus described it :-Pleadings are prolix but not precise, and these are made up into useless records, with expensive engrossing, and infamous fees; they perplex the jury and irritate the judges, and make such a mess of the "record" that it is a hard matter to enter the "findings" on the different issues, or to make out what the issues are; and enormous expense is incurred for witnesses to prove all sorts of points, never really matter of dispute at all; and put to the proof, not for the sake of their being proved but in the hope of their not being proved. And amidst the confusion, the real matter in dispute (if there be one, which very likely there is not) is lost sight of, or is shuffled over unsatisfactorily; so that there are expensive motions in court to correct the errors of nisi prius, perhaps issuing in a new trial, or even a new course of pleading, as likely to be as little decisive as the former. ("Pleading as it Was, as it Is, and as it Ought to Be." Stevens & Norton.)

cases that it was practically impossible to try such matters before a jury, and then at the last hour both parties, under pressure of expostulation from the bench and persuasion from the bar, agreed to a reference which might have taken place perhaps twelve months before, and must have taken place had it not been for the desire of one party to delay, for which both parties had to pay the penalty in a useless increase of expense.

It was impossible that such a system should be allowed to continue. In a few years an act was passed (a) (which is known by the honoured name of Lord Denman) to remove many technical objections which tended to the exclusion of evidence; and in a few years more, in 1851, not until after the County Court Act had passed (b), was passed a very valuable act (c) with the larger object of providing for the admission and obtaining of evidence, allowing the parties to a suit to be called, and giving great facility to the procuring of written evidence (d); the principal provision being one to the effect that whatever documents could be obtained in a Court of equity by bill of discovery might be obtained in a Court of law by simple application on rule or summons. Still this act, while it admitted the principle of compelling parties to a suit to give evidence, stopped far short of its development, and

(a) 6 & 7 Vict. c. 85.

(b) 9 & 10 Vict. c. 95.

(c) 13 & 14 Vict. 99.

(d) In aid of this part of it a new Stamp Act, 13 & 14 Vict. c. 97, contained some useful provisions.

limited its application to the obtaining of documentary evidence in a suit actually instituted.

This could scarcely satisfy the exigency of the evil or the claims of the age, especially as the County Court Act had exhibited in actual existence, not only tribunals without a system of pleading, (though it would be a mistake to say there are not the rudiments of it, in the requisition of notice of plaintiff's case, and of certain defences,-sufficient recognitions of the principle and utility of the system,) and, albeit that in its actual working the mischievous effects of the absence of such a system were manifest, such was the prejudice against pleading, that the people would not perceive it—not only, however, had the country before it tribunals without pleading, but, what was far more important, and greatly tended to diminish the ill effects which would otherwise have arisen from the absence of pleading, these tribunals had the power of exercising a speedy jurisdiction by examination of the parties upon oath, in cases of debts or pecuniary demands, the judge deciding without the needless intervention of a jury; a virtual restoration of the substance of the invaluable ancient procedure in matters of debt and account; and in 1852, after an extension of the county courts jurisdiction to cases of fifty pounds (a), the second common law commission, after the lapse of twenty years from the first, produced another report and

(a) 13 & 14 Vict. c. 61.

another body of recommendations for the reform of common law procedure.

Before noticing these recommendations and the measures which are founded on it, it is interesting to observe, in the reports of the cases decided during the twenty years immediately preceding, the efforts of the judges to extricate themselves from the fetters of a fatal system, and to establish the very principles which that measure enunciated. In 1832 Lord Chief Justice Tindal ruled that, on general demurrer, the averments in a pleading must be taken as "they would strike any ordinary person," and that any objection "strictly formal" must be taken on special demurrer (a), and soon after laid it down that on any formal objection (as plea in abatement or special demurrer) the Court could give leave to amend without payment of costs (b). The same learned judge decided another case which tended very much to curtail the power of chicane, determining that a party could not, after his opponent had pleaded, put a construction on his own prior pleading which was not reconcileable with the rules of good pleading; in other words, that it could not be in his mouth to say that his own pleading was bad (c) for the purpose of

(a) Varley v. Manton, 9 Bing. 365.

(b) Wall v. Lyon, 9 Bingh. 411.

(c) Brogden v. Marriott, 3 B. N. S. 88. So in another case at the same time, it was held that a party cannot take advantage of an ambiguity in a traverse after having taken an issue upon it and gone to trial, Bradley v. Milnes, 1 B. N. C. 644; 1 Sc. 621.

making an objection to his opponent's. In the same Court several other decisions were given on the same principle. Thus it was held that on an objection to the form of a plea in denial it must, if possible, be taken to traverse the allegation denied, in the same sense as that in which it was made in the prior pleading (a). So in a more recent case the same Court held that where a declaration or other pleading was susceptible of a construction that would make it good it was not competent to the party pleading it to make it bad (b). Had the Courts felt themselves at liberty to hold that where it was susceptible of a construction that would make it good it should not be competent for either party-the party pleading it or the party pleading to it-to make it bad, they would have cured all the viciousness of the modern system of pleading, and gone far to reform, or rather restore, common law procedure. However, it is not to be wondered at that judges could not concur in upsetting a system they had always known as

Nor, after a traverse is taken on a plea admitting the cause of action, can the defendant have a re-pleading for the immaterality of his own plea, Fancourt v. Bull, B. N. C. 581; 1 Sc. 645.

Nor if a defendant took a traverse on a special replication, on which an issue was taken and found against him, could he move for judgment non obstante veredicto, Rand v. Vaughan, 1 Hodges 173. The other courts took a similar course, and a number of cases will be found cited in a note to the Com. Law Proc. Act, 1852, sec. 143.

(a) Heenan v. Evans, 3 M. & G. 398.

(b) Moore v. Foster, 5 C. B. 220.