IN

PLEADING:

WITH

Copious Notes

ON

PRACTICE, PLEADING AND EVIDENCE.

BY

JOSEPH CHITTY, JUN. Esa.

OF THE MIDDLE TEMPLE.

FIRST AMERICAN FROM THE FIRST LONDON EDITION.

IN TWO VOLUMES.

VOL. I.

SPRINGFIELD:

PUBLISHED BY G. AND C. MERRIAM.

PREFACE.

THE NEW RULES ON PLEADING promulgated by the Judges have effected an extensive Reform in the Science of SPECIAL PLEADING, and have rendered it essential that the Pleader should not only be fully acquainted with the facts of his case, but should also be master of the Law affecting it.

By limiting the plaintiff to one count for each distinct cause of action, and the defendant to one plea for each separate ground of defence, each party is compelled to ascertain and state his case with accuracy and precision; divested of any superfluous allegations which his proofs may be inadequate to support, and yet sustained by averments which may have been anxiously introduced in order to meet the scrutiny and objections of his adversary. When several counts or several pleas upon the same principal subject-matter could be adopted,when the same fact might be varied in shape or form at pleasure, it mattered little to the Pleader that parts of his pleadings were incorrect; he was not bound to concentrate his case; and he sought refuge from the consequences of his ignorance. of the facts, or of their legal operation, in the diversity and variety of his claims or defences. There was little incentive to industry, as there was a ready shelter for indifference, idleness, or incapacity.

The abolition of the unbounded and illogical effect of the general issue has produced, and will continue to produce the most powerful influence in promoting investigation, and therefore extending learning and knowledge upon this important branch of the law.

These Rules are not only deserving of encomium in this respect; they entitle the learned persons who framed them to the thanks of the public, because they tend to strengthen the important line of demarcation between the different provinces of the Court and Jury, by extracting and separating the law from the facts, and to relieve suitors from unnecessary expenses, by enabling them to ascertain, in due time before the trial, the nature of the evidence each party has to adduce.

Questions of LAW, upon which, in many instances, the substantial merits of the claim or defence entirely hinged, were by the indefinite and sweeping effect of the General Issue in actions of Assumpsit, Debt on Simple Contract, and Case, necessarily diverted from the decision of the Court, in the early stages of the Cause. The consequence was, that in such instances the facts and law were presented to the Judge and Jury, in the hurry of a Nisi Prius Court, in a confused and complicated mass, and much valuable time was exhausted, and great expense incurred, in ascertaining the facts, although probably the parties did not materially disagree respecting them, and the cause ended with the reservation of a point of law for the opinion of the Court above, which might have been less expensively decided long before on demurrer to the Pleadings. Under the New Rules many actions are decided upon the merits, by demurrer; and this will account in some measure for the great increase of demurrers. It is true that until these Rules are thoroughly understood, points in pleading of a mere technical nature will constantly arise; but it is equally true that the result of a demurrer will often substantially decide an action in reference to the justice of the claim.

In cases in which no question of Law arose, the vague and unlimited operation of the General Issue under the old system, left each party in doubt as to the case and probable objections of his adversary; and, consequently, each was compelled to provide himself with evidence of various matters irrelevant to the real merits of his case, and which perhaps his opponent never thought of contesting. This, however, no longer exists;