Special de murrer. Judgment upon demurrer to be given ac cording to the very right of the cause. And the enactments for this purpose, besides the abolition of formal commencements and conclusions (see sects. 66, 67, 68, supra), the adoption of the general conclusion of stating the amount of the claim (sect. 59), and the general judgment, without distinction between debt and damages (sect. 95), are contained in the following sections, s. 49, 51, 89, 64, 65. 49. "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 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." 51. "No pleading shall be deemed insufficient for any defect which could heretofore only be objected to by special demurrer.” It is also specially enacted by sect. 64, that 64. "Express colour shall no longer be necessary in any pleading." And by section 65. "Special traverses shall not be necessary in any pleading." The power of presenting an issue in law is, however, preserved in all stages of the cause, for by section 50. "Either party may object by demurrer (a) to the pleading of the opposite party, on the ground that such pleading does not set forth sufficient ground of action, defence, or reply, as the case may be; and where issue is joined on such demurrer, the court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect in or lack of form; and no judgment shall be arrested, stayed, or reversed for any such imperfection, omission, defect in or lack of form." It is to be observed that the clauses as to giving judgment according to the very right of the cause, is confined to issues on such demurrers, that is, those described in the early part (a) The form of demurrer and the practice as to delivery, &c., will be stated in a separate division, infra, 106. of the section, and would, therefore, not apply to where a special demurrer has been delivered, and there has been a joinder in demurrer prior to 24th of October. Whether s. 51 would apply to such case, must be determined at an early period by the courts; but it would seem to follow from the language of the 222nd section that, at any rate, an amendment might be allowed without costs, and if the special demurrer, as is generally the case on the eve of the long vacation, was delivered merely for delay, it would be a very proper exercise of those powers under that section to dispense with the costs. See as to the application of the statute to pending proceedings in general, supra, 2. And the 1 Will. IV. c. 7, s. 2, may be added as another instance of a statute as to procedure applying to preceding proceedings. The words there used were, "that in all actions brought" it shall be lawful for the judge before whom any issue in such action shall be tried" to certify for speedy execution, and this was held to include actions commenced before, but tried after the passing of the act. (Bell v. Smith, 5 C. & P. 10.) By verdict at common law, independently of the statutes of jeofails, many defects in pleading were and still will be cured, but it will be material to draw the distinction between the two classes of defects, for only the latter are cured on judgment by default, and error may still be brought upon such judgment, except where the writ is specially indorsed (sect. 27, supra, 21); the suggestion of the commissioners, prohibiting any error being assigned except upon a judgment of the court actually given, not having been followed out in the statute. The rule as to the defects aided by verdict, is laid down by Effect of Lord Ellenborough, C. J., in delivering judgment in Jackson v. Pesked (1 M. & Sel. 234), where judgment was arrested upon a declaration by a reversioner for want of a sufficient averment that his reversion was injured. "Where a matter is so essentially necessary to be proved, that had it not been given in evidence the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict; and where general allegation must, in fair construction, be so far required to be restricted, that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed, after verdict, that it was so restrained at the trial." Or, as it is laid down in Williams' Saund. i. 228 a. "Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is verdict. Upon motion judgment, or veredicto, cured by the verdict." But unless the fact presumed to have been proved can be implied from the allegations on the record by fair and reasonable intendment, the verdict will not aid the defect. As expressed by Maule, J., in Harris v. Goodwyn (9 Dowl. 423), where judgment was given non obstante veredicto, because the plea set up a parol promise in answer to an action on a covenant: The rule is not, that you may supply anything; but that which is said equivocally is to be understood in the sense which would make the plea good; and that which is alleged only by way of implication is to be considered as alleged as effectively as by a direct statement." So where, in trespass for a distress after tender, and there was no averment to show that the tender was made before the distress was impounded, and issue was taken on the amount, judgment was arrested after verdict for the plaintiff. (Ladd v. Thomas, 11 A. & E. 117; see other cases, Chitty on Pleading, 7th ed.; 1 Williams's Saund. 228 a.) And as the verdict cures nothing which is not impliedly in issue, judgment by default will not cure the omission of facts not alleged. Thus, if a feoffment be pleaded without livery, although that does not show a perfect title, yet if the feoffment be put in issue, and found by the jury, the defect would be cured by the verdict, but would be fatal after judgment by default. Further, the verdict only cured such defects when found for the party for whom the intendment was required to be made. The consequence of this power to pass by objections was, that motions in arrest of judgment, or non obstante veredicto, were often made after all the expense of a trial had been incurred, and the successful litigant deprived of the fruits of a verdict according to the merits for a slip by his pleader, which might easily have been amended had it been objected to by demurrer. Still, as the commissioners justly observe, it is a sound and fundamental principle of the law that the statement of facts on the record should show a good cause of action and a good cause of defence, and the plan adopted will meet the evil without encroaching on the principle, whilst the provision that the party objecting must pay the costs if the objection ought not in truth and according to the merits to have been made, and also the costs of the mateterial issues found against him, will effectually carry out the object in view. 143. "Upon any motion made in arrest of judgment, in arrest of or to enter an arrest of judgment, pursuant to the statute for judgment passed in the first year of his late Majesty King William non obstante the Fourth, intituled 'An Act for the more speedy Judgment and Éxecution in Actions brought in his Majesty's facts may by Courts of Law at Westminster, and in the Court of Common Pleas of the County Palatine of Lancaster, and for amending the Law as to Judgment on a Cognovit Actionem in Cases of Bankruptcy,' or for judgment non omitted leave of the court be suggested. obstante veredicto, by reason of the non-averment of some alleged material fact or facts or material allegation or other cause, the party, whose pleading is alleged or adjudged to be therein defective, may, by leave of the court, suggest the existence of the omitted fact or facts, or other matter, which, if true, would remedy the alleged defect; and such suggestion may be pleaded to by the opposite party within eight days after notice thereof, or such further time as the court or a judge may allow; and the proceedings for trial of any issues joined upon such pleadings shall be the same as in an ordinary action." The 1 Will. IV. c. 7, here referred to is the act empowering the judge who tries the cause to give a certificate for speedy execution. (See infra, "Execution.") The suggestion may be made either before or after the motion has been heard or determined, and in general the application should be made to the court for leave. The case of Ladd v. Thomas (supra, 88) may be referred to as an illustration of this section. A suggestion that the tender was before the distress impounded would, if true, have ensured to the plaintiff the profits of his verdict. It does not seem at all necessary that the facts omitted should have been proved at the trial; but under some circumstances the entire failure of proof at the trial might be a reason for the court to refuse the leave, if they have any discretion. This, however, may well be doubted, for the case would seem to fall within the rule that, when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application. (Macdougall v. Paterson, 21 L. J. 27, C. P; Crake v. Powell, 21 L. J. 183, Q. B.) The question for the court to determine would be whether, if true, the suggestion would remedy the alleged defects, and theoretically there would seem to be no means of compelling the court to give the leave, or to dispute their decision that the suggestion would not remedy the default; but practically if the matter were at all open to doubt, the leave would be granted, as then the opinion of the Court of Error would be taken. In Ricketts v. Noble (18 L. J. 408, Exch.), however, the court refused to allow an entry upon the record contrary to their opinion as to the operation of a statute, although there was no other way of having their decision reviewed. If the view we have taken of the application of the statute to pending proceedings be correct (supra, 2-4), the first four days of term will probably not pass over without a motion under this section. The suggestion may be pleaded to, and the proceedings go on to trial as in ordinary actions. Judgment to follow result of suggestion. Costs of abortive issues. Pleading and 144. "If the fact or facts suggested be admitted, or found to be true, the party suggesting shall be entitled to such judgment as he would have been entitled to, if such fact or facts or allegations had been originally stated in such pleading, and proved or admitted on the trial, together with the costs of, and occasioned by, the suggestion and proceedings thereon; but if such fact or facts be found untrue, the opposite party shall be entitled to his costs of, and occasioned by, the suggestion and proceedings thereon, in addition to any other costs to which he may be entitled." The words "if such fact or facts be found untrue," mean, of course, if the party who makes the suggestion does not prove it. The costs of the proceedings prior to the suggestion will be materially affected by the next section; for whereas formerly, when judgment was arrested, each party paid his own costs (Campbell v. Reynolds, Cowp. 407); and on judgment non obstante veredicto neither party was entitled to the costs of the immaterial issues (Goodburne v. Bowman, 9 Bing. 667); now by section 145. "Upon an arrest of judgment, or judgment non obstante veredicto, the court shall adjudge to the party, against whom such judgment is given, the costs occasioned by the trial of any issues of fact, arising out of the pleading for defect of which such judgment is given, upon which such party shall have succeeded; and such costs shall be set off against any money or costs adjudged to the opposite party, and execution may issue for the balance, if any." What will still further diminish this class of objections is, that there is no longer any ground for following the advice given by Lord Coke; "first take advantage of the matters of fact, and leave matters in law, which always arise upon the matters in fact ad ultimum, and never at first demur in law, when after trial of the matters in fact law will be saved to you." (Lord Cromwell's case, 4 Rep. 14 a.) It has always been one of the cardinal rules of pleading that neither party could at the same time contest the validity in point of law of his opponent's case, and deny or confess and avoid the facts upon which it rested. By demurrer he admitted the facts, and if he denied or pleaded to the facts, he could only contest the law by the motions in arrest of judgment, &c. non obstante veredicto or writ of error; but now by section 80. "Either party may, by leave of the court or a demurring judge, plead and demur to the same pleading at the same together. |