administration of justice, either as it concerns life, liberty, or property."

We now

So much for dilatory and technical defences. come to pleas upon the merits; and here the attempts made from time to time by the legislature and the judges to diminish the grievance of prolixity, have been productive of the worst results. We have stated already, that a majority of pleadings consist merely of the complaint and a brief denial of its truth; and this is the very evil we complain of. According to the strict principles of pleading, the defendant should make his choice between demurring, traversing, and confessing and avoiding, as explained at the commencement of these remarks. He should have it in his power to put the plaintiff to the proof of the complaint; but new facts and legal objections should stand alone, and be accurately explained. In many forms of action these principles are still attended to. In covenant, and in debt on instruments under seal, there is, properly speaking, no general issue. The most comprehensive form of denial that can be employed is, that the writing declared on is not the defendant's deed; under which, he can merely contest the fact, or the validity, of the execution of the deed. Any other defence must be particularly set out. In formedon, quare impedit, detinue, and replevin, the plaintiff has notice from the plea of the intended line of defence; and in trespass, to land, goods, or for personal violence, there is little reason to complain of its generality. In these actions, the general issue puts the plaintiff to the proof of the act alleged; and, as the case may be, that the lands or goods were his. If the violence was actually committed and the plaintiff legally possessed, and the justification is, a licence, right of common, or right of way, or that the act was done in aid of an officer, in pursuit of a felon, or to remove a nuisance, a special plea is necessary. Even here, however, there are occasional departures, owing chiefly to the intervention of the legislature. By express enactment, a distress for rent may be given in evidence under the general issue. Magistrates and most public functionaries are privileged in this respect, and may avail themselves of the general form of denial in actions brought against them for any thing done by virtue of their offices, and shew

the special matter in evidence. A provision of the same nature now most commonly accompanies the grant of authority of any sort; and such cases are not improperly excepted, as an undue exercise of power is too notorious to take any one by surprise. But to prevent the possibility of perversion, it might be advisable to compel the officer or magistrate to give notice that he justifies as such, without setting out the precise nature of his authority.

No such partial remedy, however, will cure the vagueness of the usual plea in assumpsit and case, in which law and fact, denial and confession, are confounded. So glaring, indeed, is the aberration from principle, that we must look about to account for the departure, or we shall find it difficult to maintain that we ever had a plan. The truth is, the application of the action of assumpsit to cases in which no promise has been actually made, is a comparatively modern invention. The proper remedy in such cases was the action of debt, formerly objectionable on account of the precision required in the proof, and the privilege allowed to the defendant of clearing himself by wager of law. To evade its inconveniences, the courts resorted to the fiction of implying a promise when a demand was proved. Thus every circumstance affecting the liability becomes matter of consideration before it can be decided whether a promise has been made or not, and the general issue (non assumpsit) comprises necessarily every species of defence. To declarations on actual promises the general issue is not, in principle, so comprehensive; and grounds of discharge, occurring subsequently to the engagement, are not included in the terms of the denial. Yet led away by a supposed analogy, the courts have suffered express assumpsits and implied to be assimilated. With very few exceptions the defendant may now resort to every species of defence, without affording the least hint of his intentions; and (stranger still) he has the option of pleading specially, when he thinks proper to lengthen the record.

Now the use of pleading, as we formerly observed, is to throw off superfluous matter, to gain the advantage of mutual admissions and lessen the quantity of proof, to evolve the points of contention, and, by separating law and fact, to draw a broad line of demarcation between the provinces of the jury and the

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

13 Bl. Com. 306.

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 law1, 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.

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 something, 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, howPage 52.

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. There may 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 ontrasting oral pleading conducted by counsel, with the ver