has now, by the practice of the courts above mentioned, become so small, that these fees have dwindled to an amount which can be no object to the revenue; and if they were abolished, as they should be, we are not aware of any reason why the process to bring a defendant into Court should not always issue directly out of the Court where he is required to appear.

From the process Mr Miller goes on to the Pleadings, whereby the plaintiff and defendant state their cases to the Court. He holds the entire system of pleading in the highest despite; and exposes at great length the abuses to which it is liable. That these are many is undeniable, and it is not difficult to point them out. The question is, whether they can be remedied without destroying the system; and if not, whether the benefit derived from the system is so small, in comparison of the evil occasioned by the abuse of it, as to make its destruction advisable. Mr Miller has not, in our opinion, satisfactorily answered this question, in either of its branches. He admits, what, indeed, cannot be questioned by any man who has turned his attention to the subject, the utility of pleading "in ascertaining the sub"ject for decision," that is, in settling, before the cause comes to be heard, what are the points upon which the dispute really turns. This is done by means of allegations propounded by the parties in writing. The party against whom an allegation is brought forward, either denies the whole or some material part of it; or admits it, but alleges other facts which he contends render it unavailing against him; or insists that he is not called upon to answer it, because, even upon supposition of its truth, it is insufficient in law to raise a demand against him. This last mode of meeting it is called a Demurrer; and if the opposite party joins in demurrer, that is, insists upon the sufficiency of his pleading, the cause is said to be at issue in law. If the whole allegation, or any material part of it, is directly denied, the parties are then said to be at issue in fact, and the cause is ready for trial; if it is admitted, and new matter alleged, the new allegation may be met in the same variety of modes, and so on, till the parties come to issue; but this commonly takes place by the defendant denying the first allegation of the plaintiff, and is scarcely ever deferred beyond three or four steps of pleading. Issues in law are decided by the court upon argument; issues in fact are tried by a jury upon the evidence either of documents or witnesses-and indeed documents must generally be authenticated by witnesses, at least so far as to show that they are what they purport to be. The proof of facts by the testimony of witnesses is both expensive and uncertain ;-expensive-because witnesses must frequently be brought from a dis

tance, at the cost primarily of the party who requires their attendance, though that expense may ultimately be shifted to the shoulders of the opposing party; uncertain-because of the uncertainty of the memory, honesty, intelligence, or steadiness of the witnesses whom it may be necessary to call. Now, if it can be ascertained beforehand, whether the defendant means to dispute the law or the facts of the plaintiff's case, and if the latter, to what extent he means to deny them, then, if the defence rests upon matter of law, the whole of the inconvenience of preparing for and going to trial may be saved; and it may be very much diminished, where the defence rests upon matter of fact, by the precise knowledge of the state of facts intended to be insisted upon by the adverse party; and this is what the law of England seeks to accomplish by pleading. It is obvious, however, that this object would be entirely defeated, unless the pleaders were bound to a considerable degree of precision in their allegations. If the parties might, at the trial, prove, by evidence, a case totally different from that stated on the record, that statement would become altogether useless, and the suitor must come into court prepared to repel by evidence every possible case which his antagonist, if plaintiff, might be able to produce against him, or, if defendant, might be able to set up in opposition to his demand. Yet this is the state of things which plans for a general amendment of the system of pleading, by rendering it less precise and formal, tend to introduce. Such plans are always favourites with the multitude;-they hear a strong case made out against a defendant in a court of justice; no answer is given to it, and their indignation is excited at finding, that, notwithstanding what they have thus heard proved, the plaintiff fails of gaining his cause, on account of some discrepancy between his proof and his previous statement of his story in writing. They never consider the unreasonableness of calling upon a defendant who has been warned to defend himself against one charge, to dispute another of quite a different nature; and while they lament over the loss of so much trouble and expense as this plaintiff has incurred, they have no means of estimating the cost and inconvenience which have been saved to hundreds of other suitors, by the operations of those rules which he suffers for having neglected.

As the precision required in the statement of a case in pleading tends to cut down the expense which would otherwise be incurred in proving unnecessary facts, so the rule which forbids the joinder of several causes of action of different natures in the same suit, prevents the confusion which would arise in the minds of the jury if their attention was distracted by having to weigh

and adjust, at the same time, a number of incongruous demands. But this rule of law, also, is a subject of severe animadversion to Mr Miller. He denies the propriety of all the classifications of actions now in use, and wishes to introduce what he calls two or three general forms of actions. We should have liked to see an example or two of such forms; but as our author has not favoured us with any, we only know, that his object is "to break "down the walls of partition which separate those" forms of action" which now exist."

"If the plaintiff had more than one cause of action against a defendant at the same time, he would by that means be relieved from the difficulty under which he is now placed of conjoining them, or electing between them; and a defendant would be able to set forth a good defence with greater facility."—pp. 128–9.

We confess our inability to see the benefit of the proposed change, or what a plaintiff would gain by being able to join a count in assumpsit upon a contract for the sale of a horse, with a count in trespass for an assault upon his own person. If we suppose this oddly-assorted pair to have travelled to the assizes without having their union prematurely broken by the intervention of any of the forms of pleading, now happily done away, it is impossible, with any degree of seriousness, to conceive the discussion of two such heterogeneous causes before a jury, in one trial. Mr Miller, however, contemplates this extreme case; for to him "the "distinction between actions ex contractu and ex delicto seems to "have no just foundation." (p. 128.) But the unfitness of a jury to decide upon complicated rights is so apparent, that their functions are continually delegated to arbitrators, wherever the nature of the action, as in assumpsit, admits of the examination of various transactions in one suit. Yet the causes of action which the law allows to be so joined, are at least similar in their nature, and have commonly, in fact, such a connexion with each other, that justice could hardly be done if they were separately discussed,-which consideration seems to have led to the overlooking the inconvenience arising from the joinder even of similar causes of action. But it is scarcely possible to conceive a case in which the merits of a demand, which a plaintiff is now compelled to enforce by an action ex delicto, can be complicated with those of a demand arising upon a contract; and it is, therefore, far better, that if a plaintiff happens to have two such discordant claims upon the same person, he should submit them to the consideration of a jury in distinct actions.

But highly as we rate the utility of precision in pleading, we still bear in mind, that good pleading is only valuable as a means to secure an important end,-namely, that the opposite party

may receive proper information of the nature of the pleader's case, both in law and fact. We think, therefore, that when once that end is answered-when once either party has admitted that his adversary's allegations are intelligible, and such as, if true, entitle him to succeed in the cause-he who has made such an admission, ought not afterwards to be permitted to arrest the judgment by showing defects in the pleadings; and to such an admission, we think, pleading over and going to trial, ought in practice, as it does in theory, to amount. Mr Miller observes justly, though with some inaccuracy of expression,

"Whatever objections it may be thought proper to allow to the form of the action, or any particular part of the pleadings, ought to be presented in an earlier stage of the cause, as they can scarcely ever have any object, after judgment" (it should have been, after verdict) "has been pronounced, than to elude the ends of substantial justice."-p.156.

It is notorious, that at present, if the defendant is doubtful whether a demurrer will hold, or is apprehensive that the defect in the declaration, if noticed, may be removed by amendment, he does not demur; but first taking the chance of beating the plaintiff at the trial, he then, if defeated, comes to the court after all that expense has been incurred, and moves to have the judgment arrested on the ground of the mispleading of which he has all along been aware; which motion the court is bound to grant, if the defect is in a matter of substance, and is not supplied by necessary inference from the finding of the jury. The reason alleged in support of this practice is, that every judgement of the court being to be preserved as a precedent of authority for future times, the record ought to contain matter sufficient to show that the judgment is according to law, which it is not, if the case of the successful party, as stated on the pleadings, be not such as to warrant it. This reason appears to us unsatisfactory; because, whatever may have been formerly the case, the courts do not now take notice ex officio of defects in pleading, and consequently a record upon which their opinion has never been required by the parties, carries with it no authority as a precedent. If, therefore, an act were passed, to take away motions in arrest of judgment, and the record of a judgment posterior in date to the passing of the act were produced to us, the only inference we could gather from it as to the correctness of the pleadings, if it contained no demurrer, would be, that neither party had thought it worth his while to call for the opinion of the Court upon them at the proper period, and consequently, that no such opinion had been given. This is precisely what happens now with regard to defects of mere form; they, as well as matters of substance, are, and ought to be causes of demurrer

when pointed out in due time; but if then passed over, are no ground for arresting the judgment: yet nobody is induced by the judgment to suppose, that the Court has pronounced them to be no defects. If it should be thought hard to compel a party to abandon altogether any defence which he may be able to make against the facts of his adversary's case, if he takes by demurrer a fair though doubtful objection to its legal sufficiency, we should greatly prefer empowering the Court, upon a proper case, to allow a party to plead after judgment against him on demurrer, to the present practice of allowing him in effect to demur after a verdict against him; because the delay and expense would be much less in the former case than in the latter, and as the whole proceeding would be under the control of the Court, it would be much less liable to abuse. What we have said of motions in arrest of judgment, applies equally to writs of error for defects in the pleadings, which ought never to be allowed, unless the plaintiff, in error, has actually by demurrer called for the opinion of the inferior court upon the points.

We have now noticed our author's principal objections to the constitution and procedure of courts of common law. Our limits will not permit us to consider his observations on the mode of Trial by Jury-his reflections upon the hasty and unimpressive manner of administering oaths in courts of justice, or his doubts of the wisdom of our system of imprisonment in execution for debt. We agree with him in the main on these topics; but though they are important, the questions agitated concerning them, in the work before us, do not so involve any great legal principle, as that the decision of them either way would make any important innovation in the law.

The small number of suits commenced in the Exchequer, in comparison of those in Chancery, has induced our author to confine his observations on the constitution of courts of equity, almost exclusively to the latter Court. He assigns the following reasons for preferring a single Judge in equity to several:

"There is a marked difference between the nature of the causes which are brought into courts of common law, and those which are brought into equity. At common law, there is frequently but one point to be decided, never many, and the judges are seldom required to do more than to declare what the law upon one or more of these points is. Where that is the case, both the questions which arise, and the discussions which take place upon them, are as unembarrassed as they can possibly be; and it is exactly on such occasions that a plurality of judges is attended with the greatest good and least inconvenience. But the causes which are most common in equity are not of this nature. In most of them, the parties and points in dispute are numerous, and the rights which have to be settled spring out of a mul