Fife's trustees,' serves to illustrate the principle here contended for. That was a case relating to the execution of certain deeds, as to which generally the statutory regulations of the Scotch law are very careful and always strictly enforced. The deeds were granted by the deceased Lord Fife, who was said to be blind, and in such circumstances the law superadds some anxious provisions, so as to make sure of the instruments being the intelligent and deliberate acts and deeds of the party. The succeeding Earl of Fife brought an "action of reduction," in which it was averred that the legal solemnities proper to the execution of the deeds had not been attended to, and that therefore they ought to be reduced and set aside. The Scotch Courts, in order to ascertain the truth of the facts pleaded, directed certain specific issues on the different grounds on which the action was laid. Of these there were no less than seven. They were not all absolutely necessary for the decision of the action-one or more of them might have been sufficient to do that, but according to the comprehensive rules of Scotch pleading they were all the proper results of the facts set out. They were such as these: whether the earl was blind? whether his subscription had been duly adhibited or acknowledged in the presence of the instrumentary witnesses? whether the deeds were read over, and there were no means of the earl knowing what their contents were immediately before signing? and so on, till all the points in the cause were brought out by specific questions. But the House of Lords, in subsequently reviewing the case, allowed a new trial, and directed that the issue for trying the validity of the deeds should be this, "whether the the deeds were not, or either of them was not, the deeds or deed of the Earl of Fife," an issue which admitted of all the evidence the other seven issues required. There was no counter issue. The speech of Lord Eldon, in moving the judgment of the House, was most luminous, and has ever since regulated the practice in the Scotch courts. The principle is, that although an issue may be sufficient, in legal contemplation, and with reference to the unopposed effect of a particular rule of law, to decide the case, such issue may not embrace all the fact and law, may not exhaust the merits, and so may fail in determining the right as between the parties. There may, and frequently are, cases where special issues on specific points can be advantageously taken; but, for the trial, it must always be desirable to have, if possible, one issue, or if the suit divides itself into heads or distinct rights, several issues of substance, which is or are to decide the cause; and not only so, but which will enable

'Murray's Reports, vol. i. p. 90; and Shaw's Appeal Cases, vol. i. p. 498.

the jury by their verdict to declare the cause to be decided. When special issues or points in the cause are put to the jury, the verdict merely answers the issues without reference to the judgment of the jury on the demand or right which is the subject of the action. The finding of a jury on any number of points, unless put in terms which imply a cognizance of the merits, and so a final judgment on the matter of the cause, does not, by force of the intrinsic power and quality of the verdict, decide, because it does not bear to decide, the right and justice of the case. We take it to be consonant to the true theory of jury trial, as a general rule, that the verdict should, on its face, judgment on the evidence and whole cause, and that it is not enough for a jury to say we find certain pleas made good, without at the same time showing for whom, or for whose interest, for the vindication of whose right, they give their verdict, under the issue on which the cause is made to depend. And it is this characteristic requisite of a proper verdict that shows the necessity for a full and comprehensive system of pleading. Such a verdict on an incomplete record, or a record that, by an inflexible application of the rules respecting duplicity, was hampered in its pleas, would clearly work substantial injustice. But as the verdict in question is the just and true one, it follows that the averments and pleas in the record should be correspondingly ample and relevant. The law, in all respects, should be entirely satisfied. Now according to the principle recognised by Lord Eldon in the Fife case there might, in most suits, be settled an issue sufficiently specific as regards their merits and grounds, all of which it might include, but general in form, and which, with due precautions as to the affirmative or negative of the case, would answer every necessary purpose. The plaintiff would thus be enabled to reply all his replies; everything would be sent to trial; and although the jury might by such a course have a larger field of inquiry, they would be better instructed for a right deliverance in the cause. This form would be a true and perfect issue, and might either be agreed to by the pleaders on both sides, or settled for them. No retrospective examination of the pleadings, as in Scotland (of which proceeding Mr. Stephen seems to be afraid) would be necessary, but the record would stand with its several resulting issues or points, and all that would be required in settling the issue on which the trial was to take place would be to embody all the points into one general question, which would be taken as the issue in the cause. And not in the hitherto received and technical, but in the best sense of the term, would this one comprehensive issue be a single issue, for as regards the defendant it would raise but one question, that of his legal liability;

and to meet our other juridical desiderata it would be the result of the "intrinsic operation" of the pleadings—their legitimate, necessary, and certain development.

But where the duplicity amounts to inconsistency, in other words, where there is repugnancy, the pleading is on obvious principle utterly bad,-a demurrer to it goes to the honesty and true purpose of the party offering the plea, and ought at once to be allowed. The rules against repugnancy, both as respects form and substance, cannot we think be applied with too great rigour. Not remotely connected with the subject of repugnancy is the doctrine relating to a negative pregnant, which appears to have excited Mr. Phillimore's especial indignation. The The case, however, to which he refers, does not show any particular objection to the rule itself, but rather points out an awkwardness arising from the time and mode of pleading it. Certainly no material traverse should be pregnant with an admission, or have any insensible quality pertaining to it. There is really here no grievance. Matter of fact, if pleadable at all, should be unequivocally set out, so as to leave no doubt of its plain effect in law; and the utmost perfection and precision in language, the purest style of allegation, should be brought to the aid of all judicial proceedings. These and other rules of English pleading, by which a pure and conclusive character may be given to the language of averment, commend themselves by their logical excellence.

We would now, in concluding our remarks on the general design, respectively, of English and Scotch pleading, notice a quality pertaining to our system which exhibits an obliquity, so to speak, in its actual structure, and as to which it has been considered to contrast unfavourably with the Scotch forms. We allude to the exceptionable feature of our law records not affording a proper disclosure of the case to be made, by which the subsequent contention ought in fairness to be guided, and to which all matters of law and evidence may advisedly be referred. Something beyond the record is consequently required, e. g. a bill of particulars, to make up the defects of the pleading and render the record intelligible. A better and juster system in this respect obtains in Scotland. The condescendence and answers are pleadings so drawn as completely and fully to disclose the case of both litigants, so that their form affords every reasonable security against surprise. On this subject the Lord Chief Commissioner Adam observes,

"Pleading by condescendence and answers was a course anciently adopted in the Court of Session in Scotland when trial by jury in civil causes formed no part of the judicial system of that country. This course of proceeding now affords the most perfect security against

surprise in the trial of issues. The mischief of surprise at Nisi Prius has been so severely felt in England that it has been a principal cause of the introduction of the New Rules, as they are termed, into the special pleading of that country."1

No facts can be proved or in any way founded on at the trial which are not in the record. If new relevant and material facts subsequently arise they must, as matter for pleading to, be pleaded as res noviter veniens ad notitiam, and then they ground a motion for a new trial. Thus, every thing must be pleaded, and no use can be made of omitted matter. The excellence of this rule of Scotch pleading was acknowledged by the House of Lords, a few years ago, in giving judgment in a Scotch appeal, where the point arose on a bill of exceptions which had been taken to the charge of the judge, the present Lord Justice Clerk of Scotland, in a case relating to the infringement of a patent. The case was that of the Househill Coal and Iron Company v. Neilson and others, and the point in question arose in this way:After the issues were adjusted, but before the record was closed, the appellants gave the respondents notice of certain objections on which they intended to rely at the trial. The notice was made under a certain statute; but the Lord Justice Clerk ruled that the statute did not apply to Scotland, and that the matter of these objections could not be so supplied, and the Court of Session subsequently disallowed the bill of exceptions, remarking at the same time on the difference of pleading in England and Scotland. On appeal the House of Lords unanimously held that such ruling was correct, Lord Campbell thus expressing himself,

"It seems to me, that that section of the recent Act of Parliament about giving notice does not apply to proceedings in Scotland, * * * the language employed shows that it was not so intended; and there was this plain reason for abstaining from carrying into Scotland that provision, namely, that the law of Scotland required no such amendment, because by the very salutary practice prevailing in that country there is no danger of surprise, the condescendence and the statement on the record being to be looked at as confining the general issue, that might be granted to try the merits of the questions. I am therefore clearly of opinion, that where an issue of this sort, which in the north is called a general issue, is granted, the learned judge at the trial is fully justified in looking, and ought to look, at the record, and to confine both parties to the facts and circumstances that are therein alleged. Looking at the record in this case, it seems to me

It is understood that the late Sir William Follett approved of pleading by condescendence and answers, and that as a method of averment the form of these papers was, in his opinion, peculiarly suited to the spirit of the Scotch law. 2 9 Clark & Finnelly, 788.

VOL. VII. NO. XIII.

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*

that it excludes evidence of the trial which is supposed to have taken place at and that the defenders were not justified in entering into evidence of such trials at any of the places which are not specified in the record. * I should have been most sorry indeed to have at all prejudiced the salutary practice which prevails in Scotland upon this subject, and I wish that in England similar rules prevailed. According to the ancient practice of pleading in England there was notice given, because in a writ of right the demandant stated specifically the title that he made, but in an ejectment nobody can tell what case is to be made on the part of the lessor of the plaintiff; and I can say, from my own experience, that I have repeatedly gone into court, being counsel for the defendant, where an action was brought to recover a large estate, not only ignorant of the particular facts that were to be given in evidence, but not knowing what title was to be made; whether the lessor of the plaintiff claimed as heir at law or under a deed; whether he impeached the title of the purchaser in himself, or whether it was a question of parcel or no parcel. That certainly leads frequently to surprise in England, and renders it necessary, on the ground of surprise, that a new trial should be granted. A much more salutary system prevails in Scotland, which I know this House most highly approves of, and will most carefully guard."

Besides the peculiarity of its formal design, there are two particulars by which English pleading is distinguished from Scotch; these are, first, the prescribed technical style which the English pleader must on all occasions adopt, without regard to the suitableness of any other form of language; and, secondly, the use we make of fiction.

We have already remarked on and objected to the excessive technicality of our English forms; but we would not allow a large discretion to the pleader in the manner of his allegation. We think our brethren in Scotland err in permitting perfect freedom of expression in the structure of their records, for, with the exception of a few words of style in the summons, it is so with them. The Acts of Sederunt, we have said, contain very admirable rules for the preparation of pleadings, so far as external form and order are concerned, but they do not enjoin any particular phraseology of style by which the law may be impartially declared upon at the bar. The consequence is the want, in most cases, of a due precision and a bias in the averments. Styles of pleading might not be so conveniently employed in cases where equitable views were mixed up with the strict rules of law, and which had to be argued and decided upon the adjusted record alone; but, in cases intended for trial by jury, we cannot help thinking that forms of style, not corrupted like our English forms with an antiquated and unintelligible fiction, but adapted to a simple and brief statement of all the details of the case, would be found to afford great facilities