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that the plaintiff shall proceed to state his cause of action in a substantial shape. They say
"What we propose is, that the necessity for the form be absolutely done away with, and that every declaration and subsequent pleading which shall clearly and distinctly state all such facts as are necessary to sustain the action, defence or reply, as the case may be, shall 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 statements should be used; and that judgment shall 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, shall invalidate the proceeding. To give effect to which principle we further propose that, except in the cases more particularly specified presently, no pleading shall be deemed insufficient defect upon which objections can now be taken on special
This recommendation is, we believe, calculated to meet the difficulty which has arisen from the existence of special demurrers, by which the ingenuity of pleaders is exercised to detect formal errors of the most minute description, and the courts, upon the argument, give effect to this fatal ingenuity by turning the parties round upon points entirely beside the merits of the real question in dispute. When a court has become so destitute of judicial astuteness as to be unable to know that "the year 1845" meant the year of the Christian era, and has compelled the parties to incur all the expense of pleading and argument afresh because of the omission of the words "of our Lord," it is high time for the legislature to interfere and prevent the occurrence of such gross outrages upon common sense. This is no hypothetical case, it will be found in the Reports, and serves as a single specimen of a large class of decisions—ex uno disce omnes. According to the method now proposed, all fictitious and needless statements in pleadings, express colour, and the whole jargon of the pleader's precedent book—is to be discontinued, and, if inserted, it may be struck out by a judge upon such terms as he may think fit.
"While, however, we think it necessary to get rid of all requirements of a merely formal character, it must be obvious to every one that some rules are absolutely necessary for the attainment of what has been shown to be the proper object of pleading. A power must exist of compelling parties to be clear and distinct in their statements, and there must be a remedy against ambiguity, whether intentional or not."
This part of the suggestions will, we foresee, lead to great opposition in the present temper of the public upon such matters.
With every desire to see a rational simplification introduced into our courts of justice, and to abolish all the unmeaning farrago of words which serve only to perplex jurors or mystify suitors, we still think that the propositions of the contending parties ought to be set forth logically, and, if logically, they must be clearly and distinctly stated. If the parties are required to state all the facts necessary to show a cause of action or defence, such a provision as is here recommended is of course required. But it is the opinion of many persons, whose judgment and experience are entitled to considerable weight, that less particularity and detail ought to be demanded, at all events from plaintiffs in stating their cause of action. A system of claims, similar to those which have been recently introduced in equity, is suggested for the assertion of legal demands. Such a mode might perhaps offer some advantages over that proposed by the Commissioners. But we think that, upon the whole, it is right that a plaintiff should state, in some shape or other, every material fact which it is necessary for him to prove, in order to give the defendant information as to what he has to meet, and that the substantial details of the cause of action should be set out. If the judges will give effect to these recommendations by looking to the substance rather than the form of the pleadings, we feel assured that no great difficulty will arise from their adoption.
For the purpose of providing against uncertainty, duplicity and argumentativeness in pleading, the Commissioners have had to decide between different modes of proceeding, each of which is directed to the prevention of the unlimited use of special demurrers. That which they have selected seems sufficiently simple, and calculated to effect the desired object without inflicting any serious expense or failure upon a party who is willing to deal fairly with his adversary. If a party objects to a pleading upon any of the above grounds, he may take out a summons before a judge, specifying the defect complained of. If the judge decides against the objection the pleading stands, and his decision is final. If he thinks it ought to be amended, he is to order it to be amended. If this order is not complied with, the party objecting is to be at liberty to demur on that single ground of objection, and the court is to decide the demurrer against the party objecting, or is to order the pleading to be amended. Upon this judgment no writ of error is to lie. This seems a reasonable mode of proceeding. The probable effect of these improvements is thus stated:
"To hold that a pleading is bad because more or less obscure, seems unreasonable, unless the party pleading will not amend and clear up the obscurity when it is pointed out to him. The application
to a single judge, by summons, is attended with very trifling expense, and we hope will, at a future time, be still less expensive. The judg ment of the judge will not be final as to the result of the cause. If he decides against the party complaining, he only compels him to answer the pleading as it stands. If he decides against the party pleading, his decision is not final, if the party thinks fit to refuse to amend. In truth, we believe the actual appearance before the judge will seldom take place at least in cases where the parties mean fairly."
Among the unnecessary statements which are to be no longer required, is that of profert of a deed produced by the party suing upon it, and the necessity of setting out the deed upon oyer by the party charged upon it is also done away with. A power of inspection and of requiring a copy is substituted in such cases. We call particular attention to the following excellent remarks made by the Commissioners in reference to this subject.
"Whether a party be entitled to such inspection in courts of common law is always a question of doubt: and, except in policy causes, these courts exercise a very uncertain jurisdiction on the subject. We think that wherever inspection of any document can be had by a bill of discovery, it should be obtainable in any court of common law where the suit is pending, and we have recommended that provision should be made to that effect."
We see no reason why this should be limited to cases where bill of discovery could be filed. The court in which the action is brought should in all cases be enabled to compel inspection of any written document, the contents of which are material to be proved at the trial. A clause to the effect above suggested has been introduced in the bill for the amendment of the law of evidence, which is now before parliament, and we are inclined to think it will be found to be the most practically useful of all the provisions of that measure. The great use of discovery, as a means of eliciting truth, is most ably stated in Lord Langdale's judgment in Flight v. Robertson, 8 Beav. 34.
The same general mode of traversing and stating special defences is proposed to be permitted to defendants as is allowed to plaintiffs in declaring or replying. The cumbrous artifice of a special traverse is to be discontinued,- new assignments, although still permitted, are to be confined within limits required by reason and good sense. Whatever number of pleas a defendant may plead to one cause of action, there is to be only one new assignment at that time. If a defendant, by his new pleading, obliges the plaintiff again to new assign, he may again plead a single new assignment, and so on toties quoties at each stage, until an issue is raised. Several counts and pleas may still be allowed, as at present; and, in addition, a similar liberty
VOL. XV. NO. XXVIII.
is to be given to reply, rejoin, &c., several matters by leave of the court; and a party is to be able to plead and demur at the same time and to the same pleading. These are very extensive changes, and will probably prevent the recurrence of much of the injustice which has been hitherto felt.
The abolition of the technical forms of action is strongly recommended by the Commissioners. Indeed this effect will, in all probability, result as of course from the previous suggestions, and we see no reason for retaining fine drawn distinctions which serve little other purpose than to perplex and embarrass plaintiffs. Some very important amendments with reference to the joinder of parties to actions are next to be observed. The difference at present existing in this respect between actions of contract and of tort is well known, but it is very difficult to support the distinction by any sound reason. This distinction the Commissioners propose to sweep away, and to enact that "the joinder of too many plaintiffs be not fatal to any action, but that the plaintiff or plaintiffs entitled may recover;' and on the other hand, "where too many defendants are joined in an action on contract, the plaintiff shall be entitled to recover against such defendant or defendants as appear to be liable, and that the other defendants shall be acquitted."
"As to the non-joinder, we propose that the non-joinder of a person as plaintiff in an action on contract shall be amended at the trial by the judge as a variance, if it shall appear to him that such nonjoinder was not for the purpose of obtaining an undue advantage, and that injustice would not be done by amending, and the omitted party consent to be joined as a co-plaintiff."
The defendant may, however, prevent such an amendment being made by serving a notice to that effect at the time of pleading. Claims by a man and his wife for injuries to her may be joined with claims by the husband in his own right.
We may pass over very briefly the subsequent steps in a cause up to the time when issue is joined. The time for pleading is extended and made uniform in all cases, rules and notices to plead are abrogated, and the necessity of counsel's signature to special pleadings is to be no longer required. If the defendant suffers judgment by default, that judgment is to be final in all cases where the demand is liquidated, and thus the rule to compute is abolished in all such cases. Where the demand is unliquidated, but is substantially a matter of calculation, a judge may substitute a computation by the master for the writ of inquiry which is now requisite. The issue is to be made up and delivered as at present, and notice of trial is still to be given to the defendant, but an uniform period is prescribed for all notices
of trial. Some material alterations are recommended in the process for summoning the jury. At present, two writs issue to the sheriff, the venire and the distringas, under which he is supposed to summon a jury to try each of the causes. In fact the jury panel is summoned quite independently of these writs, the sole advantage of which, as stated by one of the witnesses examined before the Commissioners, is, that the under-sheriff gets paid for summoning the jury. These writs are proposed to be abolished, and in lieu of them a copy of the jury panel is to be annexed to the record; thus retaining the substance without the useless form of the existing proceedings.
With respect to special juries much dissatisfaction has been felt at the present practice, which, besides being very expensive, requires in some counties a very large number of special jurymen to be in attendance during a great portion of the assizes. This must almost inevitably result as long as a distinct special jury panel is returned for each cause. The object of having the cause tried by a different class of jurors would be as well effected by a single special jury panel as by many; and as a far less number would thus be summoned, expense would be spared to parties as well as personal inconvenience to the jurors. With this view the Commissioners propose―
"That, in all the counties except London and Middlesex, a precept shall be issued to the sheriffs, directing them to summon a number of special jurymen-say forty-eight in large counties, where many special jury causes are tried, and a smaller number in the other counties; and that the persons so summoned shall be the jury for trying all the special jury causes at the assizes."
This system, as originally proposed, was to have extended also to London and Middlesex, but in deference to a strong opinion advanced by many competent persons against such an extension, the limit above mentioned has been adopted. With this restriction we fully concur, as, considering the number of special jury causes usually tried at Westminster and Guildhall, it would be unreasonable to require the attendance of forty-eight merchants and bankers during a week or ten days. The method by which the twelve men who are actually to be in the box would be selected from the panel is not distinctly pointed out in the Report, but the plan suggested by Mr. W. H. Palmer, a most experienced under-sheriff, appears to us to be very feasible and open to little objection. He advises that no actual challenge should take place at the assizes, as such a course is always looked upon most unfavourably, but that the parties should attend at the sheriff's office in town, and reduce the list of forty-eight jurors to twenty-four, which should be returned as at present as