rebut, &c., will be an abandonment of the plea, and if there be no other plea to that part of the declaration to which the plea is pleaded, the plaintiff may strike out the pleadings as to that part and sign judgment by default, but where there are other pleas to that part of the declaration, the plaintiff may apply to a judge to strike out the pleas which are abandoned for want of rejoinder. If indeed the plaintiff has demurred to one or more of several pleas addressed to the same part of the declaration, the defendant might have abandoned the plea or pleas so demurred to, without being liable to costs. (See M'Intyre v. Miller, 2 Dowl. & L. 719.)

VIII. PLEADING.

Having thus stated the practice as to the delivery of the pleadings, it will be convenient, before proceeding to the further stage of the trial of the cause, to refer to the subject of Pleading; that is, the mode by which the matters really in controversy between the parties are to be ascertained. And without exceeding the limits offered by a work like the present, the general outline of the future system will best be understood by showing the particular evils of the existing system, which have been sought to be remedied by the new statute, and making such observations as may seem likely to be useful; and in doing this we have availed ourselves largely of the Report of the learned Commissioners, the language of which, in describing the existing rules and practice, is always concise and clear. The object then of pleading-however Object of much the practice has diverged from the theory-is that the pleading. points in controversy should be ascertained, and questions of fact as far as possible separated from questions of law, so that each may be referred to the proper tribunal. To effect this object the plaintiff was required to state his title to sue and his cause of action, and the defendant his grounds of defence with certainty and precision. This principle will still be applicable, as it should be, and the plaintiff's titles, as public officer, assignee, executor, &c., must be mentioned, and every declaration and subsequent pleading must clearly and distinctly state all such facts as are necessary to sustain the declaration, defence or reply. The attainment of an issue was also a fundamental principle, and governing the progress of the pleadings. The plaintiff having in the first place stated the facts which constituted his cause of action, the defendant was required to answer, and (assuming he had no dilatory plea to offer, which was addressed either to the frame of the writ or the competency of the parties, and did not deny the right of action) he was compelled either to deny the statement of the plaintiff, or, confessing it, to avoid its

Forms of action.

effect by asserting some fresh fact, or, admitting the facts alleged, he denied by demurrer the legal effect of them as contended for. The plaintiff then joined issue on the fact denied, or the alleged defect in law, or denied the fresh facts alleged, or admitting them, denied their legal effect, or avoided it by fresh facts. In like manner, the defendant rejoined and so on, until it was ascertained that there was some fact or facts asserted by the one side and denied on the other, or some proposition of law affirmed on the one hand and denied on the other. But upon these abstract principles were engrafted rules of detail, and abuses which have gone far to destroy their utility. In the first place the form of action, or the peculiar technical mode of framing the writ and pleadings appropriate to the particular injury complained of, must have been carefully selected. By the established practice of pleading peculiar forms of expression, characteristic of each action, had been appropriated thereto, many of which were of a purely formal nature, and wholly independent of the merits of the cause of action. Thus in trespass the allegation of force and arms and against the peace must have been stated, but omitted in case, although it was often extremely difficult to determine whether a particular injury was to be sued for in trespass or case (a). So in assumpsit and debt, which forms of action were in many cases equally available, particular forms of expression were necessary in each action, any departure or deviation from which would have made the declaration bad. In an action of assumpsit upon an indebitatus count or a promissory note, a promise to pay must have been expressly stated, although none need have been proved. (See Hayter v. Moat, 2 M. & W. 56.) Moreover, no two of the forms could be joined in one action (except debt with detinue), and a misjoinder was fatal even after verdict, or upon writ of error. The evils consequent upon these rules have been completely removed, although the forms of action have not in terms been abolished. In the first place, as already noticed, by sect. 3 no form or cause of action need be mentioned in the writ, and no question can arise whether the declaration agrees with the writ in this respect. Next, the objections which might have been made to the declaration for the want of the formal expressions will no longer lie; for with respect to the language and the form of pleadings in general, it is enacted by section

49. "All statements which need not be proved, such as the statement of time, quantity, quality and value,

(a) See a notable example, where the owner of sheep which had been killed on the railway, lost the fruits of the verdict, because trespass had been brought instead of case. (Sharrod v. London and North Western Railway, 20 L. J. 185, Exch.)

where these are immaterial; the statement of losing and finding, and bailment, in actions for goods or their value; the statement of 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 all statements of a like kind, shall be omitted."

And the effect of this section, taken with sects. 50 and 51, will be, that a declaration stating the substantive cause of action will suffice. And by section

tions par

wrong.

74. "Whereas certain causes of action may be considered Pleas to acto partake of the character both of breaches of contract taking both and of wrongs, and doubts may arise as to the form of of breach of pleas in such actions, and it is expedient to preclude such contract and doubts: any plea which shall be good in substance, shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract, or for a wrong."

The last occasion on which this objection could arise was upon a misjoinder of two diverse forms of action, and that can no more occur, for by section

41. "Causes of action, of whatever kind, provided they be by and against the same parties and in the same rights, may be joined in the same suit; but this shall not extend to replevin or ejectment; and where two or more of the causes of action so joined are local, and arise in different counties, the venue may be laid in either of such counties; but the court or a judge shall have power to prevent the trial of different causes of action together, if such trial would be inexpedient, and in such case such court or judge may order separate records to be made up, and separate trials to be had."

The more frequent objections, and those which in reality brought the opprobrium of the public, as well as the disapproval of a great number of the most eminent men in the profession upon the system, were the result of the over anxiety to ensure an apparent compliance with the rule as to certainty, and were known as special demurrers. The technical rules Rules as to which led to those exercises of ingenuity and subtlety required certainty. a minute statement of time, value, quantity, and other matters of detail and description, but while they frequently led to the delay and defeat of justice, they rarely if ever gave information to the opposite party, for although these matters were averred with certainty in point of form, by means of a videlicet, there was no necessity to prove them as laid; and, on the other

hand, in order to avoid a variance between the statements and the proof, and to conceal as much as possible the exact facts, the ingenuity of the pleader was often taxed to the utmost to frame the averments in as general form as possible, so long as they were not open to the objection of ambiguity. Subsidiary to the attainment of certainty were those rules which required the facts to be stated in an absolute form, and not argumentatively, so as to be matter of inference only, however inevitable such inference might be, which gave rise to the technical and artificial device of a special traverse. (See Stephen on Pleading, 203-214.) Another objection sometimes made to pleadings was, that they involved a negative pregnant, e. g. where a plea averred that the plaintiff's daughter gave the defendant licence to enter the plaintiff's house, and that he entered by that licence, a replication that the defendant did not enter by that licence was bad as a negative pregnant, because it was left doubtful whether the licence was denied, or that the entry was by virtue of the licence.

To avoid the objection of argumentativeness, express colour was invented. Thus if to a declaration stating that the plaintiff was possessed of a house, the defendant had pleaded, stating that the house was his, the plea would have been bad, upon the ground that it was an argumentative and indirect denial of the statement that the house was in the possession of the plaintiff; but if the defendant had shown that he had a good title to the house, and admitted the plaintiff's possession in fact, but surmised that the plaintiff was in possession by some bad title, the plea would have been good, because it would give colour to the plaintiff's alleged possession. The surmise might have been entirely false, but the plaintiff could not have denied it, as if he did he would have been met by the answer, that it was immaterial whether or not that was the title upon which he relied, for if the defendant had the title alleged, it did not signify whether the plaintiff's pretended title was correctly stated or not. This, however ingenious, was too subtle, and its abolition was accordingly recommended.

Other fictitious and needless averments were inserted in practice, some originating in ancient rules of law, as "vi et armis" and "contrà pacem," by which a fine to the king was obtained, but like so much of our legal system, continued long after the cause of their existence had ceased (a), and others only con

(a) It should never be forgotten that the fees of court originated (except where they were extortion), in payments for work done, and it should also be known that successive governments make use of these fees to swell the revenue returns, and the so-called abolition that from time to time has taken place, has been chiefly a change in the parties who ultimately receive the fees. The government thus evades the odium of levying a direct tax upon justice by the convenient veil of "court fees," and the legal profession is blamed for the continuance of what is most hateful and prejudicial to themselves, and over which they have no control.

form.

tinued in accordance with a long course of precedent. At Objections of common law, indeed, and while the pleadings were in Latin, these evils had been still greater, and numerous statutes were passed to remedy a too rigid adherence to forms. These were known as the statutes of amendment and jeofails, the former being the 14 Edw. III. st. 1, c. 6; 9 Hen. V. st. 1, c. 4; 4 Hen. VI. c. 3; 8 Hen. VI. c. 12, and 8 Hen. VI. c. 15; and the latter being the 32 Hen. VIII. c. 30; 18 Eliz. c. 14; 21 Jac. I. c. 13; 16 & 17 Car. II. c. 8 (the Omnipotent Act, see 7 T. R. 587); 4 & 5 Anne, c. 16; 5 Geo. I. c. 13. By the former statutes all real or supposed misprisions of the clerks could be amended, and without the amendments being capable of being reviewed by writ of error (see Cheese v. Scales, 10 M. & W. 488; 12 M. & W. 685; Siboni v. Kirkman, 3 M. & W. 46); and by the latter, all formal defects, imperfections, omissions, defaults in form, lack of form, were cured by not being specially demurred to, and after verdict or judgment by default, judgment was to be given according to the very right of the cause, and the matter in law appearing on the pleadings. These statutes, however, preserved in full vigour the necessity of the forms being observed, and when the new rules compelled the use of special pleas instead of the old general issue in assumpsit, debt on simple contract, and trespass on the case, which were the actions most common in practice, the inconvenience of these technical rules was greatly increased. Captious objections in respect of trivial slips, words left out, or formal matter omitted, were of every-day occurrence; traps were laid on purpose to catch the less experienced pleader, and solemn discussions had to decide whether the traps had been successful, and oftentimes the respective pleaders contended for victory on points as wholly beside the merits, as they would have been unintelligible to the litigant parties had they happened to have been present. To use the words of the Report, p. 20, "it would seem that the excessive precision required is scarcely practicable, except in pleadings of well known character, and daily occurrence, in which, former generations of suitors having paid costs for the settlement of the law, the pleadings have become easy and intelligible." To meet these various evils the commissioners proposed that the necessity for the forms be absolutely done away with, and that every declaration and subsequent pleading which should clearly and distinctly state all such facts as are necessary to sustain the action, defence, or reply, as the case may be, should 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 statement should be used; and that judgments should 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, should invalidate the pleading.