to the intrinsic working of the pleadings, is "thrown off," is so by anticipation; whereas according to the Scotch plan the issue is extracted from the pleadings under the full advice and instruction of all the averments. By this proceeding it may be argued that a better, that is, a more surely complete, issue is likely to be obtained; but we conceive that the preponderance of judicial considerations is in favour of the English form. Sir Matthew Hale quaintly says, that "a thing should be so pleaded that it may be tried," a remark which, so far as pleadings themselves are concerned, can be most truly applied to our own. It certainly is in the issue, evolved by the intrinsic operation of the pleadings themselves, that the merit of English pleading is allowed to consist. English writers on the subject (and here we may remark that almost all the works on pleading are good, because the science is so peculiar and recondite, that in order to being understood at all, the language employed in describing it must be very clear and precise,) have stated, as a general reason for the adoption of the English plan, that the end which special pleading proposes to itself is to evolve or eliminate the real matter in controversy in a simple form, without the qualification of circumstance or embarrassment from collateral topics. "When compared with other styles of proceeding,' says Mr. Serjeant Stephen in his admirable treatise on Pleading, "it has been shown to possess this characteristic peculiarity, that it produces an issue." We would add to this definition and say, that the general characteristic of the whole design of the English system is so to shape the pleadings, that on one side they intrinsically tender, and on the other intrinsically accept, issue simply, or several resulting issues, which by the very act of, the manner of, and the generic peculiarity of the pleading, is or are mutually and necessarily referred by the litigants for decision to the court or to the jury, as the case may be. If the issue or issues so produced be duly given effect to, we apprehend the intention of the system to be satisfied. But that intention is further narrowed, and a particular quality in the mode of applying the design of the pleading has by inveterate habit been made, or held to be, part of the system itself. The rules which regulate the practice of our common law courts peremptorily require the issue to be not only certain and material, but SINGLE. By this is meant the limitation of the issue to only one plea in law, although there might be several. We can appreciate the practical convenience of such a result, and, wherever fact and law admitted of it, we would have the issue single. But a critical analysis will enable us to see that the enforcement of the rule of singleness, in every case, is at vari ance with a system of true allegation and sound juridical judgment. We do not however perceive that either the rule, or the explanation offered for it, is necessary, in order adequately to sustain the acknowledged design of English pleading. "A record," according to Lord Coke, "imports such an uncontrollable credit and verity as to admit of no averment, plea, or proof to the contrary;" yet in many instances this requisite of singleness must be inconsistent with the truth of the case, and it surely is neither a compliment to the learning of the judge, nor a tribute to the intelligence of the jury, to say that an unqualified simplicity and unity in element, which would divest the issue of all but one legal consideration, where there were many, is necessary to their understanding of the question submitted to them. Here the Scotch method of pleading, although in other respects less scientific, is preferable. That system is alone concerned for the complete specification of all the facts on which the parties profess to rely, the immediate object being a perfect disclosure, with all the materials for an issue on which a suitable trial may be had. Pleading should do something more than merely delineate the external form and quality of a legal statement: it should provide for that statement being sufficiently full and comprehensive, so as reasonably to secure against surprise by the addition of every relevant detail, not of itself purely matter of evidence, which may assist the final and conclusive determination of the cause. Once in a court of law, a party should not on the same set of facts be obliged to place himself at the bar of a court of equity, but, as was represented to the last law commission by Lords Abinger and Denman, the forms of the common law court should be sufficient for all poses. It is, however, frequently found to be otherwise by the jaded and fatigued suitor, whose case, if he abides by the resources of the one court, is literally winnowed of its real merits by the effect of this required singleness. If this singleness could be effected in truth, if it could be arrived at by the NECESSARY, FULL, and FREE working of the pleadings themselves, and these pleadings of a strength and power which would embrace every ground and principle of law pertinent to the facts, no objection could be advanced. We have, however, only to point to two leading rules of English pleading, under the head of DUPLICITY, to show the injustice of the artifice resorted to. The first of these rules is, that one cannot plead and demur to the same matter. If he pleads to the fact, he is thereby compelled to waive all objection in view of law; and so as to the effect of a general demurrer, if he demurs on legal ground, he, as the necessary consequence, is considered to pur admit the fact as alleged by his opponent; because if it were not so, there would be two issues in relation to the same subject of suit, one an issue in law, and the other an issue in fact; this would be double pleading, and the issue would not be single. We have great difficulty in appreciating this artistic refinement. The idea of holding, say, a defendant, where the decision is against his demurrer, so absolutely confessed to the fact as that the plaintiff is entitled to judgment to recover, is somewhat startling. The facts founded on may be untrue, and the defendant may know them to be so, and be able to disprove them, and yet at the same time he may conceive that all that is set out in the declaration is insufficient in law to instruct the plaintiff's claim, which accordingly he puts to the test of a demurrer ; but why, when the plaintiff has merely stood such test, the defendant should be considered in the same position in relation to the facts as he would have been if these had been established by evidence, we cannot clearly understand. But the other rule to which we now refer, and which relates exclusively to the form of the issue in fact, does the greatest violence to principle, on account of this fanciful notion. We allude to the form of the replication, (the subject of condemnatory remark by Mr. Phillimore and others,) which shows that it is by forced meansby a rule which, as regards the merits of the case, is extrinsicthat the issue is made single. A defendant may plead several pleas, but a plaintiff can make but one single reply to each. He cannot reply all his replies, however consistent they may be. He is not allowed his full and free answer; he must elect the matter of his replication from the several grounds he may have in law, else (not that the right would not be properly pleaded, but) the issue would not be single! This is surely unjust, an uncalled for sacrifice to convenience in form. clearly, we apprehend, insufficient pleading. There may be two or more good replies, each sufficient, in legal contemplation, to decide the action, yet they may not be inconsistent or in the least repugnant; and it is hard to require that evidence on the one, it may be a failure in evidence, should exclude a hearing on the other. We say a possible failure in evidence, because it might so happen that the matter of replication fixed on could not, owing to some unforeseen accident, be established at the trial. But although the plaintiff might have another good reply in law, he is forced to peril his case on the replication he has made, and thus (adopting Mr. Stephen's reasoning with respect to the allowance of several pleas under the statute of Anne), by a mistake in the selected reply, the restriction occasions the loss of the cause, contrary to the real merits. Justice and legal It is principle allow a full and free reply to all the defendant has alleged, but the rules of English pleading are stricter and severer than the law itself, and the plaintiff is obliged to make, not a certain and perfect, but a chance reply. The narrow technicality of the pleading may defeat the legal right. It is extraordinary that the New Rules did not correct this great and admitted evil,—it is an admitted evil. Mr. Stephen allows it to be an anomaly, and justifies it on no ground except its practical utility; it is mechanically useful and convenient. The form of the replication was noticed, and publicly complained of, before the New Rules were promulgated. Lord (then Mr.) Brougham, in moving for the Law Commission in 1828, remarked upon it and other abuses in pleading with great force. "There is another inconsistency," said Mr. Brougham, " in our system of pleading, which I cannot allow to pass without notice. A defendant may plead, but a plaintiff cannot reply many matters,"" and he gave an instance in indebitatus assumpsit. Pleadings must be true, but the replication is not a true, because it is not a full, fair, and candid pleading. Can it then be said that our pleadings, if left to themselves, if allowed to act freely, do of their own intrinsic operation produce a single issue, a single and certainly sufficient issue? It cannot. The issue, as now produced, does not exhaust the pleadings, and its "convenient" form is obtained at the expense of justice. Mr. Stephen is of opinion, and we apprehend correctly, that this peculiarity as to the issue took its rise in the ancient practice of oral pleading, but it is evident he feels it cannot be referred to any sound principle. He says, "while several issues, therefore, must of necessity be allowed in respect of several subjects of suit, the allowance of more than one issue in respect of each subject of suit (or of one subject of suit of course) is in some degree a question of expediency." And again, "But whatever the reason, it is clear that in point of fact this principle was very early recognized in pleading, and that the issue was required not only to be material but single." There may, under the Statute of Anne, be several issues in respect of a single claim, and so far the law has been improved; but still the issue must be single, and in order to its being so, the plaintiff is prevented from having as many replies in foro as are within the legal principles applicable to the nature of the case. Under the existing form, therefore, the record is imperfectly framed; it may indeed be essentially untrue; it may have excluded from it relevant, pleadable and issuable matter, going directly to the justice of the case, and the issue joined may not thus be the real, entire and perfect result of the pleadings. If 1 Mirror of Parliament, vol. i. p. 86. the pleaders of Scotland, or of other countries, see anything in our system which might be advantageously introduced into theirs, let them not begin with this figment of the singleness of the issue. Their own existing practice, which concentrates in the settled issue all the law of the case, is a more enlightened course of proceeding. If the rules against duplicity were reconsidered, they would perhaps be wholly abandoned. They do not profess to proceed from any fundamental principle of law, but were contrived solely for a supposed convenience in practice, to effect a forced singleness on the issue, on the impolicy and injustice of which we have remarked. These rules are now of partial application, which we think wrong. We do not understand why a particular principle of constructive allegation should not apply to one pleading as well as to another. The principle has been conceded in the case of the defendant's plea, for reasons of justice, reasons which, without regard to convenience or utility, ought to govern the structure of the whole record. All forms of pleading should exhaust the jurisprudence they are designed to administer. A pleading may be "double," but it may be rightly so, and a litigant ought not to be blamed, much less put out of court, because he avails himself of all the powers the law, by its received principle, gives him, because he would make the law's advised and undoubted theory a juridical reality. But it may be asked, if you relax the rules of duplicity, where would the pleadings end? If the plaintiff may reply all his replies, the same latitude must be allowed in the subsequent pleadings, and the effect would be not only the production of several issues on the same plea, but encouragement would be held out to tedious and involved allegation. We would answer, that jurisprudence is now so far advanced, and legal principle so clearly ascertained, that few, if any, cases could arise, which would not under an issuable form of averment, assisted by duly prescribed forensic language, speedily resolve into its proper conclusion; that tedium and complexity could easily be prevented by well considered regulations; and that the production of several issues on the same plea is not essentially an evil in pleading, but a mode of result which the very simple expedient of joining them all in one distinct and substantive question to the jury, would make conducive to the ends of a comprehensive justice. The case ought to have its own EVENT, as Lord Stair, in his Institutes of the Scotch Law, quaintly but forcibly calls it; we ought not to give the event to the case, or, by artificial rule, curtail it of its due dimensions in law. The analogy afforded by a Scotch case, that of the Earl of Fife and Earl of |