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judge. Yet, in an action of general application, particularly to mercantile transactions (the most complicated perhaps of any), no warning is given, no disentanglement is made ; but parties are left to guess the tactics of their adversaries, and grope their way to the encounter as they can. The judge at nisi prius is called upon to decide a legal doubt, and begs leave to postpone it for the court. A plaintiff is tricked by a defence which fair notice would have enabled him to expose, and a new trial is allowed of course. Instead of having a verdict to abide by, the parties come to town with their attorneys, and linger out the better portion of the term; and when they get back, witnesses are to be resummoned, preparations for the assizes made anew, and refreshers administered to the counsel. Delays and costs accumulate ; yet because a final judgment is eventually obtained by a long, painful and hazardous procedure, we are gravely informed that, “ though it should seem as if much confusion would follow from so great a relaxation of the strictness anciently observed, yet experience has shown it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.” 1
It is not, cannot be so. Here at least the great commentator has erred. Experience proves what prudence would anticipate ; and there was in his time, and there is in ours, no wrong so grating to a litigant whose property is wasting in a suit, as to come close to a definitive decree, and be thrown back upon uncertainty again; to approach the conclusion of his pilgrimage, and find the commencement of a new one; to ask for quiet, and be fed with hope; to be dragged along from one tribunal to another, without a refuge from the tortures of anxiety except the stillness of despair.
We speak from experience, when we say, that the unwillingness of judges individually to decide points of law arising on the circuit, and the frequency of applications to the court for the reversal of such decisions as they venture on, are fruitful sources of procrastination and expense; and that these would most materially decrease if the strict rules of pleading were restored. We would rather adopt the maxim of singleness to its full extent; we would rather compel the defendant to take issue on a single point in the declaration, or to confess the whole and confine himself to one mode of justification, than proceed any longer in the system we are following. Suppose a case similar to that mentioned in our article on mercantile lawl, and conceive what defences may be made. When stripped of its complicated machinery, the transaction, as is truly observed, is neither more nor less than a simple sale ; but points of contention may arise, relating either to the quality, quantity, or management of the goods, the conduct of the broker, or the extent of his authority; a bankruptcy, an insolvency, a right of lien, the mode or fact of payment, &c. &c. A release, accord and satisfaction, or former recovery for the same cause, may also be relied on by the individual on whom the contract is sought to be enforced, with other grounds it would be tedious to particularize. Whatever they are, good pleading would elucidate them, whilst the general issue hangs a cloud upon the whole.
1 3 BI. Com. 306.
In permitting, therefore, the defendant to put the plaintiff to the proof of all the material averments in his declaration, we certainly go far enough; but when these are logically, they should be legally, admitted, and a plea in avoidance should necessarily confess. The general issue should be restricted to its proper sense, operate simply as a denial, and always stand alone; and defences resting on extraneous matter, on facts subversive of the effect, though consistent with the occurrence, of those relied upon by the plaintiff, should in all cases be specially set out. To the case of an implied assumpsit these suggestions apply but partially; as a simple denial involves the whole merits; yet even here we might do some thing, by requiring certain established modes of defence, (release, accord, payment, &c.&c.) to be specially pleaded. The number of answers to be allowed together is rather difficult to fix. Considering the uncertainty of proof, and how very frequently a case may fail on which the party had every reason to depend, we see no objection to admitting two special pleas to a complaint, without a reference to the court or a preventive check of any kind except the liability to costs; and we may repeat our former observation, that, though attention is distracted by variety, unfair surprises are prevented by an exposure of the utmost that can be proved. In no case, how
ever, should leave be granted to resort to more than two defences,or to plead a special plea in addition to the general issue, except on actual motion and cause shewn. With regard to the replication too, there is no reason why some such rule should not prevail. If the defendants plead infancy, for example, the plaintiff may reply either, that the defendant was not an infant when the transaction took place, that the goods were necessaries suitable to his degree, or that he promised to pay for them since he came of age.
be cases when it would be quite equitable to permit each of these points to be made, for the purpose of overthrowing a fraudulent defence; and therefore we would vest in the court the power of licensing a double or treble replication.
One more alteration, and we have done. Mr. Brougham suggests the expediency of allowing demurrers unaccompanied by an admission of facts; an amendment we would certainly adopt, since at present a suitor who is conscious of a material error in the pleading, lies by and takes his chance upon the proof, and then moves in arrest of judgment. When it is no longer necessary to admit the facts, legal objections will be taken at the outset; and the heaviest charge of all, the expence of trial, will frequently be saved.
Having now traced the outline of the system, and commented freely on its prominent defects, we would willingly conclude, were it not for the queries we proposed, and the pledge we gave, at the commencement. We have wandered over an interesting field, and pursued with care an intricate inquiry; noted much, and reflected upon more ; but we have kept in mind throughout the points that are wanting to the argument. We know that we have yet to prove that oral pleading is open to prolixity, to formal flaws, and expensive disputations, and that imposing oaths on the litigants themselves would not exclude a multiplicity of allegations nor curtail the proceedings of a suit, without introducing a most iniquitous severity. On these particulars we shall be extremely brief; and, at the outset, we are quite willing to admit that there is one high authority apparently against us ; that Lord Hale was of opinion, that the present practice had been productive of delay. But he, it must be borne in mind, was contrasting oral pleading conducted by counsel, with the ver
bose precedents and extreme strictness of his times. Our affair is with very different considerations, with the evils necessarily arising from the viva voce contentions of the parties themselves, and those of a system like our own, when made consistent with its principles. Mr. Mill will hardly support his views by appealing, with the Chief Justice, to our ancestors, for they depended upon lawyers to whom the good or evil of their law proceedings are attributable. He must rest his
system upon common sense, on the every day experience of society; and here it is that we hasten to encounter him.
May we first, without impertinence, inquire of those who hope to simplify contention by bringing suitors into contact with each other and compelling each to turn pleader for himself, whether their attention was ever drawn to the mode in which men in general are wont to mingle in dispute, to the confusion and vagueness that prevail, to the strange wanderings and irrelevant remarks it is almost always the fashion to indulge in? Did they ever listen to a passionate complaint, or mark the glosses that are put upon a tale when the hero or heroine relates it? Did they ever take instructions for a brief, or act the part of arbitrator? If they have done this, or any part of it, they may well conceive the nature of details which mutual altercation would bring out. The judge might ask A. to mention the precise fact which he believes confers upon him, or has violated, his right, and A. would favour him with ten; or rake up the whole life of his adversary, with the rise and progress of their connection.. Check him, and the court would place itself in a predicament in which our readers may now and then have found themselves, that of being extremely eager to sift a story to the bottom, and seeing clearly. the impossibility of getting at it without falling in with the humour of the teller. If a man is to be limited in proof to the matter of his preliminary allegations, he will make the charge as sweeping as he can; and the answer will be equally diffuse, with equal claims to be so. The judge, however, must remember or note down the whole, arrange the topics, and fix their essentials; and, unless form and precedent are henceforth to be valueless, must give the statement a regular construction. In short, we impose upon the judge the proper
task of pleaders and attorneys. Instead of presenting the kernel of the case, we tell him to extract it from the shell, and expect, forsooth, that he will mark intuitively the remotest bearings of every thing he hears. It is not at a single consultation that the material points of a case can be procured by a solicitor; for a legal liability is much more frequently to be deduced from a chain of circumstances, than found dependent on an insulated fact, and over-anxious clients will declaim, and colour and palliate for hours, even to their own agents. We cannot help thinking, therefore, that men in general would soon discover their own incompetency, and come over to Lord Mansfield's opinion, that he who is his own lawyer has a fool for his client. The failure of a few would teach wisdom to the many; and the result of this notable ject would be the practice of reading in court mere formal statements professionally prepared, to be afterwards copied, and recorded as now.
With regard to the imposition of oaths, we have laid down already some principles for deciding on the point, though it is extremely difficult to meet suggestions so vaguely and generally thrown out. To what must the suitor swear ? To a belief that all he says is true ? or to a belief that the grounds on which he rests his case are all essential to support it ?1 In verifying dilatory pleas, an affidavit may be reasonably demanded; because, in each of these, a precise fact is relied upon, and no variety of allegation is required. But we have shewn the reasons of the law of variance, and the mode of mitigating its severity; and no recent writer has ventured to maintain that strict singleness in pleas should be enforced ; so that, if an oath more binding is proposed than one to the effect that the party really expects to be aided by his allegations and does not make them for vexation or delay, if Mr. Mill wishes for a more severe restriction, we appeal to our former reasonings against it. If, on the other hand, he would rest satisfied with this; the answer is, its utter inutility, Multifarious statements have always an apology in the proverbial uncertainty of proof; convictions for perjury are out of the question ; and we should
' At Athens each party swore to the justice of his case. Jones's Pref. to Isæus, 21.