Objects of pleading.

Special

pleading.

would greatly exceed the limits and design of the present work. For these reasons he has been induced to suppress a considerable part of the manuscript; but while doing so, he has thought it proper to embody in the present chapter some general observations on the principles of pleading, which, taken in connection with the forms thrown into the Appendix, may be found useful guides in cases involving partnership law. These observations, it may be stated, are intended to apply more immediately to the procedure before the Supreme Court.

In every lawsuit, the Court has to determine two things, viz. the question to be decided, and the decision to be pronounced. When the first of these has been properly determined, the ascertainment of the second ought not to present much difficulty, provided proper machinery be available for ascertaining matter of fact, and provided the existing body of laws be sufficiently comprehensive and precise. In France and some other countries which enjoy the benefits of a code, questions of disputed law are of comparatively rare occurrence. Much difficulty has always, however, been felt in every system of jurisprudence in determining what is the real point for decision; the litigants themselves frequently labouring under the most erroneous and conflicting impressions on the matter. To ascertain this is the main object of the pleadings; and the comparative merits of different systems of pleading are to be judged of by the certainty and rapidity with which they accomplish this object.

According to the system adopted for ages in England, and probably also in ancient Rome, the issues both of fact and law evolve themselves spontaneously. In obedience to certain rules, each party states his own case, and meets that of his opponent in successive pleadings, until all irrelevant matter is cleared away, and the pure questions of fact or law emerge for decision.

This, which is termed the system of special pleading, has generally been found to work well, when not strained by technical refinements or metaphysical subtleties; and simplified as it now is in modern English practice, it seems to give general satisfaction. From the meagre records which have come down to us of our own ancient procedure, there is reason to believe that a system of special pleading once existed in Scotland, very similar to that which has been preserved and developed in England, and that it was

gradually overlaid and ultimately obliterated by precedents introduced from continental sources. But however this may be, it is certain that, from a period anterior to the age of Lord Stair, a system of pleading involving a theory essentially different was in use, and has continued down to the present day to be the characteristic of our forensic procedure.

large.

According to this latter system, both parties to the action are Pleading at allowed to make such averments as they deem necessary to bring their respective cases fully before the Court, without being much controlled or guided by technical rules or recognised formulæ ; and when the record is closed, the questions of fact or law which form the real subjects in dispute, are extracted by the Court from the materials it furnishes, after hearing the views and arguments submitted by the contending litigants. This system of procedure, which has been termed pleading at large, has much to recommend it in theory, and would no doubt work well in practice if the pleadings were always framed by men of sound legal knowledge and long experience in forensic practice; but since these qualifications cannot always be secured, it frequently produces records of a confused and irrelevant description, in which the real points at issue are hard to be discovered, if indeed they have not been omitted altogether. As a palliative to these evils, which are probably inseparable from every system of pleading at large, important amendments were formerly allowed to be made on the initial writs, and elaborate and argumentative written pleadings were allowed or encouraged after what might be properly termed the record had been completed. These corrections, which in some form or other appear to be necessary adjuncts to a system of pleading at large, tended in a certain degree to abate the evils in question; but being found to be accompanied by others of equal magnitude, they were ultimately abolished by statute.

of existing

As matters now stand, the existing system of pleading in Disadvantages Scotland appears to combine the disadvantages both of special system. pleading and of pleading at large, without the benefits peculiar to either. On the one hand, the pleader is required to state his case from the outset with all the exact relevancy which a system of special pleading demands, but affords mechanical means for attaining; on the other, he is required, in conformity with the principle

What should be done

before action is raised.

Action at law.

of pleading at large, to exercise his own judgment in the original statement of his case, but is not allowed to make such subsequent amendments as the efficient working of that system of pleading seems to demand. In a considerable number of cases, when the issues involved are simple, the evil consequences of this mixed system do not make themselves sensibly felt; but in cases of intricacy, such as those which frequently arise when the partnership relation is involved, an error of judgment in the preparation of the initial writs frequently produces much unnecessary delay, and ruinous expense at subsequent stages of the cause, and sometimes even eventuates in a total miscarriage of justice. To obviate these possible contingencies, the following suggestions are submitted as practical guides in the preparation of pleadings.

In the first place, the practitioner should consider whether the state of matters complained of admits of any remedy by judicial intervention; for, as we have already seen, there are some cases in which the courts will not interfere between a company and its members. If the case appears to be one for judicial intervention, he should next set himself to ascertain what is the proper remedy in the particular circumstances, since it will generally turn out that one remedy only is competent, and that even where there are several, one is greatly to be preferred to the others, as being the most commodious, speedy, and effective. While making up his mind on these matters, and at all events before any proceedings are taken, he ought to satisfy himself as to what propositions in fact and what propositions in law it is necessary to make out in order that the remedy contemplated may be obtained. The best and surest method of doing this, is to draw out in a logical form the legal principles which, if sound, warrant the conclusion of the action he proposes to raise, and to state in the form of issues the propositions in fact which, if established, will allow those legal principles to come into play. If, after due consideration, it appears that the facts or the law of the case will not warrant the conclusions necessary for the legal remedy contemplated, he ought to consider whether some other remedy is not available; but if none such is to be found, his duty appears plain-to advise his employer that the case should not be proceeded with.

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positions in law which he has drawn out, are sufficient to warrant
the remedy for which he intends to apply, he will be in a position
to draw the summons or other initial writ without much danger of
having the proceedings dismissed at a subsequent stage for want of
relevancy. In preparing the summons, care must be taken to libel Summons.
the company, whether it appear as pursuer or defender, in the mode
required by the law of Scotland in the circumstances of the par-
ticular case. All questionable or unusual modes of libelling should
be avoided. The conclusions ought to contain the remedy sought,
or, in other words, what the Court is asked to do, stated in a brief
and distinct manner. Well-established words of style should be
adopted when they are suitable. But, so far as possible, multiform
or alternative conclusions should be avoided. They often create
much unnecessary embarrassment; and it is important to observe,
that the introduction of statements of fact into the statutory part
of the summons is not only contrary to the existing regulations,
but is fraught with danger at subsequent stages of the cause.

dence.

The condescendence ought to be framed by expansion of the Condescenissue or issues already resolved on, as in this way only can relevancy be secured. It should contain nothing beyond a pure statement of fact. This statement ought to be sufficiently expanded to make the cause of action easily intelligible, and to give the opposite party due notice of the evidence intended to be led. Such documentary evidence as is relied on ought to be briefly referred to, and when possible produced. Anything beyond this is unnecessary, and may prove injurious. Amplifications and repetitions serve no good purpose, and tend to obscure the relevancy. Pleadings are sometimes prepared as if with the view of enlisting the sympathies of the Court, or producing a favourable impression at the outset. Such devices, it need hardly be remarked, are as puerile as they are delusive. It is safer to understate than to overstate a case. The statements ought to be pointed and clear. Ambiguous expressions, made with the view of being twisted into conformity with any contingency that may ultimately emerge, are not only unworthy of the pleader, but are highly dangerous, as they may seriously affect the relevancy, and are just as likely to be turned against their author as in his favour. The same observations apply to all statements intended to entrap the opposite side into unguarded admis

Pleas in law.

Defences.

Equitable procedure.

Distinction

and equitable

procedure.

sions. The legal propositions which were drawn up at the outset ought to form the pleas in law.

The same general principles and rules apply, mutatis mutandis, to the construction of the pleadings for the defence. It is not an uncommon practice to frame the defence in such a way as to throw the onus of proving everything on the pursuer. Apart from other considerations, it is very doubtful whether such a course is defensible even on the ground of policy. If a defender profess ignorance of that which he must know, his statement may be taken as an admission; and even if he should succeed in casting the onus on his opponent, the result in modern practice will generally be to accumulate useless expense. In no case can a good cause be benefited by undue reticence.

There is a class of cases in which the remedy sought is to a certain extent within the equitable discretion of the Court. Granting of interdict, appointment of judicial factors, giving decree ad factum præstandum, and numerous other proceedings, fall under this category. In the old Roman system such matters were competent only to the prætor; and in the English and some other modern systems of jurisprudence, they form a considerable part, though by no means the whole, of the duties of courts of equity.

The distinction thus drawn between the legal and the equitable between legal jurisdictions is of much more importance than is generally supposed, since it represents, and indeed necessitates, an important difference in the functions of the tribunals. In cases falling under the legal jurisdiction, the functions of the courts are little more than ministerial. Their duties are to see that the prescribed machinery for the ascertainment of the facts works properly, and to apply the existing law to those facts when so ascertained. In such matters there is no room for discretion, since no considerations can modify facts, and no private opinions ought to affect law. In cases, again, of an equitable description, the functions of the courts are necessarily more or less of a discretionary kind. They ought to have no power to make laws in the proper sense of the word; but numerous cases must always exist in which it is for the courts to determine whether they will interfere at all, to what extent they will interfere, and what form their interference will take. Such is the complexity and endless variety of human affairs, that no code can be formed