There are many treatises and books of forms, indispensable to the lawyer, on the mode of pleading and the forms of the allegations. The rules and the commentaries upon them, form one of the most technical and abstruse branches of the law; a science as some persons delight to call it. It has been praised as a logical and useful science. We are more disposed to pronounce it a system of dialectics, very fit for the schoolmen with whom it originated, but unfit for the practical business of life. So unfit has it been found, that in instances almost numberless, the legislature and the courts have departed from it and gone to the other extreme. Thus the rule, which for the sake of singleness of issue allowed but one answer to one pleading, was changed by the statute of Anne, so as to allow as many pleas as the party desired, and by our Revised Statutes still further, so as to allow different replications to the same plea. A form of plea was devised which in many cases would virtually deny every material allegation of the declaration without disclosing any particular defence. The courts from time to time have admitted new defences under these general issues, and still further to encourage them, a statute has been passed allowing the defendant to plead the general issue, and with it give notice of any defence, which he could not otherwise introduce under such issue. And more than that, the legislature allows public officers when prosecuted for official acts, to plead the general issue and give any defence in evidence without notice. This is gross inconsistency for if special pleading promotes justice, it should be adhered to inflexibly, while if it defeats justice, all parties should be freed from its shackles. This statute, therefore, is not only abhorrent to our ideas of equality before the law, but it passes sentence of condemnation upon the fundamental rule of pleading.

Besides the general issues, we have general declarations, or in technical language, common counts. These have been so contrived as to give no information of the particular demand. They also have been encouraged by the courts and numberless demands allowed to be proven under them. The extent to which they are used is shown by the fact, that out of 89 cases taken at random from the records of the courts, 18 had the common counts alone, and 42 other the same counts,

with copy of note or bill of exchange annexed. Thus, there has been a constant struggle of the pleaders and the courts, to evade their own rules. They made them and they defend them as the means of eliciting the precise point in dispute, and they seek every means in their power, to conceal it under the most general allegations.

In truth the arguments of those who defend the present system destroy each other. One is the advantage of having the question of fact drawn out so precisely, that the court and jury may see what they have to try, and the parties be prepared with their proofs; the other is the advantage of having the facts stated in so general a form, that the allegations shall cover any state of facts that may appear on the trial, or in other words, the advantage of having no question of fact drawn out by the pleadings at all.

Having thus explained the system now existing in this state, we are tempted to ask, what good purpose it serves ? Can any one tell the benefit, that arises from the division of actions into covenant, debt, trespass, case, replevin! What motive is there for one form of action when a note is sealed, and for another when the note is unsealed? Is there a reason, why the allegations of the parties should not be made in language, which themselves understand? Is there a reason, why they should not be true? There is no magic in forms. Since the facts give the right to relief, it must be proper, that they should be stated as they exist. It is impossible, that there can be a good reason, why they should be stated untruly, or in any other language, than that in which they will be explained to the court and jury on the trial.

In place of the system which we have thus explained, we propose one that appears to us natural and simple, easily understood, and capable of effecting every good object, which any system can effect. We propose, that the plaintiff shall state his case according to the facts, and ask for such relief as he supposes himself entitled to; that the defendant shall by his answer point out his defence distinctly. This form of allegation and counter allegation will make the parties disclose the cause of action and defence, so that they

may each come to the trial prepared with the necessary proofs. If the defendant in his answer allege a matter not referred to in the complaint, but which he insists constitutes a defence, the plaintiff may reply to the new matter. But there the pleadings close. Should the reply contain new matter, it is to be deemed denied by the defendant either absolutely or as capable of being explained away, and therefore, not having the effect intended. So that when the reply does not contain new facts, we have a real issue; when it does so, we have, a constructive issue, just such an one in fact as we now have, when non est factum is pleaded in covenant, with notice of special matter. We conceive that taking the cases together, it is better to stop with the reply. There would scarcely ever happen a case, where it would be of any use to go further, were the parties at liberty to do so. By the time the reply is made, the facts will have been so developed, as to leave no doubt of the precise point in dispute. If the right to go further, however, were given, it would be liable to abuse and frequently cause delays. In chancery no pleading is allowed beyond the replication. In Louisiana none is allowed beyond the answer.

In certain cases, we have allowed a demurrer to the complaint, as being the shortest way to dispose of the objection, which the defendant has a right to take. But we have so guarded it, that we think it can scarcely be abused; and we have not permitted a demurrer to an answer or reply in any

case.

The system of pleading, which now exists has become so vexatious and oppressive, and the one which we propose appears to us so favorable to the rights of the parties, and the acceleration of justice, that we might perhaps have contented ourselves, with presenting to the legislature and the people the two systems side by side. But we are unwilling to leave any objections unanswered, and will therefore, examine such as have been mentioned or have occurred to us.

It has been been said, that the mode of pleading by complaint, answer and reply, is incompatible with a trial by jury. We cannot assent to this position. In the first place the ex

perience of Louisiana and Scotland is decisive. In Louisiana the only pleadings are petition and answer. These are laid before the jury, who endorse their verdict upon the petition. All civil causes are tried by jury, when either party desires it. We have heard of no complaint, that the issues are not well defined, or that the juries cannot perform their appropriate functions.

In Scotland, trial by jury in civil cases, has existed since 1815. The pleadings are uniform and are contained in the summons and defence. Thereupon, issues are framed and stated in short questions, under the direction of a clerk of the

court.

In the next place if there were no experience to which we could appeal, we should still arrive at the same conclusion. We think the prevalent idea that nothing but common law issues are fit for a jury, is a mere illusion. It is assumed, that the production of the issue in that mode, disentangles the case, lessens the number of questions of fact, and separates them from the questions of law. The assumption appears to us unfounded.

It is by no means clear, that the production of an issue according to the course of the common law, does really lessen the number of questions of fact. The declaration may contain any number of counts, each containing a distinct cause of action, or the same cause of action in different forms. If there be the same plea to all the counts, there will be as many issues as counts. But the defendant may present as many pleas to each count as he pleases, and the plaintiff, with leave of the court, as many replications to each plea, as he may happen to have answers to it. Suppose then, what frequently happens, that a declaration contains five counts, that there are three pleas to each count, with but a single replication to each plea. Here are fifteen issues: and if there be two replications to each plea, there will be thirty. In the case of the People against the Kingston and Middletown Turnpike Company, (23 Wendell, 193,) there were thirty replications to the plea. Indeed, the effect of the system has been to raise up

issues upon verbal distinctions, and thus far to increase rather than diminish the number of questions.

Disentangling the questions and separating those of fact and of law, is rarely effected by the present system of pleading at common law. The severest application of the rules, when they have developed the issues, will be found, on a strict analysis, to have brought out only complex questions, comprehending others less general, of fact and of law. This is necessarily so, so long as the pleadings state the conclusions of fact, instead of the facts themselves. The issues of tender, payment, fraud, release, marriage, devise, property, in trover, or replevin, or title in trespass, or ejectment, are all complex questions, involving the decision of other and subordinate ones.

It will hardly be possible to reduce questions to all their elements before trial. What ultimate questions may arise, cannot be known till the evidence is disclosed. The most skilful pleading will lead only to an approximation greater or less according to the nature of the original questions. And it is for the reason that our issues do thus present complex questions, both of law and fact, that the jury is permitted, in all cases, to find a special verdict setting forth in detail the facts, tending to prove or disprove the affirmative of the issue, and referring the conclusion from these facts to the court.

The trial is now the only place where there is any thing analagous to the ancient oral pleading. That was in the presence of the court, and rested under its supervision, being in fact nothing more than the forming of an issue by the judge from the respective allegations of the parties. Indeed our system had its origin in a practice now obsolete. When the presence of the judge was withdrawn, it lost an essential part of its real character. Its present substitute is the trial. There the plaintiff opens his case and calls his witnesses, the defendant does the same; when the testimony is finished, the defendant goes over his case again, and makes his statement of the points and of the evidence. The plaintiff follows with his. Thereupon the judge charges the jury. Then comes the true analysis of the case; the development of the real points in the con