Rome, having a common source, were never divorced, but were ever wedded; and were administered by one jurisdiction, and without conflict in the Roman Judicature, as they have now been wedded, after ages of conflict, by the English Judicature act of 1873.

In the Roman Judicature, the cases reducible to a pivotal issue were tried by the ordinary tribunals, while those depending on a more discretionary jurisdiction were decided by the Prætor; but in cases of interdicts the Prætor combined the two jurisdictions in his own hand, and refused the judgment, to which he would have awarded an interdict. (I Spence Equity, 670.) This is by analogy to the judgment in a court of law in Virginia, where an equitable plea is filed; and is the method now adopted in England under the act of 1873.

That Glanvil in the twelfth century and Bracton in the thirteenth century transposed the principles of Roman procedure to the courts of common law may be regarded as an established fact in the history of English jurisprudence. Bracton's plagiarisms have been the subject of observation by Spence, Sir Henry Maine, Guterboch and others, and need not be specially referred to by me. The identity of the procedure of the common law with that of the Romans, as already indicated, confirms this conclusion.

It is well known that the King, as Fons justitiæ, through his chancellor, on the application of a suitor, issued an original writ, which recited the complaint, ordered the defendant to do what would redress it, or else appear before the court of common law named in the writ to whom, by its terms, jurisdiction to hear the cause was granted. The chancellor, like the Roman Prætor, distributed jurisdiction to the ordinary courts, and when the latter afforded no adequate remedy, the residuum of remedial jurisdiction remained in the chancellor, as the source of the equitable jurisdiction, so long exercised in sometimes fierce, always determined conflict with the common law courts. It has been thought by many writers that had the courts of common law wisely used the act of Westminster 2-13 Edw. 1, C. 24, known as that which gave the right of action on the case (in consimili casu) ;—and had freed their procedure from the rigid formulæ, by which it was enchained; and had freed themselves, as Bracton did, from the

ty

narrow jealousy which made the refined Roman jurisprudence a scare-crow to the Bench, as it was to the people of England; the doctrines of the chancery, as a life-blood of equity, would have permeated the whole system, as it did in Rome, and made the union of the two jurisdictions, a thing of centuries ago, and not consummated only, after ages of indecent strife in England, by the judicature act of 1873.

As it was, the Common Law Courts adopted in principle the civil procedure of the Roman Courts, without any modification from the Prætorian Edicts, and in contrast with the method of pleading, adopted in full force (probably from the Canonical Courts), by the Court of Chancery.

Originally oral, until perhaps the reign of Edward III, pleading came to be in writing, according to a method, which looked to a reduction of the lis to a pivotal issue and which has been sufficiently indicated in what I have said as to the Roman procedure, from which the common law derived it.

By the original system, in the time of Glanvil, the plaintiff might allege several causes of action and the defendant several defences. But the multiplicity of issues thus raised deformed the unique simplicity of the procedure, and made it hard for ignorant juries to decide them, and the courts adopted the rigorous rule against duplicity of pleading, under which, at first, the plaintiff was confined to one count and the defendant to one defence.

The rule as to plaintiff was modified very anciently (Stephen Pl. 267, App. 55), and the plaintiff was allowed to join many causes of action, or many counts alleging in diverse forms the same cause of action. Before the time of Bracton, the defendant could make as many defences as he chose, but after Bracton's time the defendant was allowed to make but one defence to each cause of action. He might have several, which he thought available; yet he must abandon all but the one he guesses the deciding tribunal would think the strongest, and stake his case on his guess.

This obviously sacrificed right to an ideal of justice, where the beauty of simplicity in forms was held to atone for the exclusion from consideration of parts of a transaction essential to the decision of the real case on its merits.

This great defect was remedied by the statute (4 Anne, с. 16), and the defendant was allowed to file many pleas to each cause of action. But here the remedy stopped; for if plaintiff had several replies to any plea of defendant he must propound but one, with the peril of not selecting the best.

And so the matter stands at this day in Virginia, as I understand the practice. It is true the inconvenience of issues multiplying in geometrical progression is very great, but injustice may be done to secure judicial convenience. In other words, a system which presents this dilemma between judicial inconvenience or injustice, cannot be a perfect system of judicature, and demands such reform as will make it convenient for courts to do full justice by a full hearing of all of a case, and not to do probable injustice by hearing only part of it. So far from this being a system of special pleading, specific pleading is excluded-and men lost cases because not allowed to plead specially all the facts necessary to attain for them the ends of justice.

But there is one other departure from the philosophy of pleading, which must be noticed.

In the course of time, from indolence or ignorance or chicanery, pleaders devised methods to conceal their real weapons under formulæ which disclosed nothing. They substituted vague and general formulæ for specific or special allegations.

In trover, assumpsit and other actions, the allegations were so vague and unspecific as to give the defendant no notice of the real case of the plaintiff. A formula, fitted for all cases alike, was really not fitted for the particular case.

Lord Brougham, in his famous speech on Law Reform in 1828, said that the same words in a declaration in assumpsit would cover seven distinct causes of action, and that the words used in a declaration in trover would cover eight distinct causes of action! Well might he add "that to call the modern practice by the name of special pleading is really an abuse of terms." It is, as he insisted, a departure from the special, or specific, pleading of the old and primeval system.

But the same vagueness and non-disclosure of real facts in the formulæ of pleading, results from the extraordinary use of the general issue, especially in assumpsit. Lord Brougham, in the speech just referred to, names eight special and distinct defences under non-assumpsit, and seven under plea of "not guilty in trespass or case," which may be given in evidence without the slightest disclosure of them in the pleas of the general issue.

So far is this from being special pleading, it realizes the case of him "who darkeneth counsel by words without knowledge." Neither party is notified of the other's case, and the tribunal is left in ignorance of both. Lord Brougham well says: "The plaintiff ought to tell the defendant the real nature of his com. plaint, and the defendant ought to make him equally acquainted with the nature of his answer."

It is true that in Virginia, and in some other States, either party may demand a bill of particulars in cases of assumpsit; and this was required here at least as far back as the Code of 1819, and a like provision as to all actions is to be found in the Code of 1887.

In Lord Brougham's arraignment of the common law procedure, which was but the parliamentary vehicle for the thoughts of Bentham, Mill, Mackintosh, Romilly and others uttered since the beginning of the century, he referred to many evils, which it may be instructive to notice, that we may see how far we have remedied them, and what further remedies we should apply.

Fines and recoveries, and such like ancient processes, we have long abandoned. Real actions are reduced to but one, and one trial of ejectment is a final adjudication. Bail in civil cases, except against one who flees civil process, was done away by the Code of 1849.

After referring to these, Lord Brougham adverts to the evils of vague allegations, and to the rule against duplicity in pleading, and to the unwise use of demurrer and non-suit for slight variances, some of which our legislation has partially cured, but not entirely. The costs of litigation, so intolerable in England and even now in some of our sister States, is not a grievous burden in Virginia. The door for evidence, so closed in that day, has been widely opened in Virginia as elsewhere.

The results of the reform movement evinced, rather than inaugurated, by that extraordinary speech have been marked, and on both sides of the Atlantic. One suggestion in the speech is striking: "No party should be sent to two courts where one is

able to afford him his whole remedy"-a prophetic declaration, realized in the union of law and equity by the judicature act of 1873.

The agitation of reform in Parliament was followed by the able report of the Law Commissioners (Stephen's Pl. 158, App. N. 44, 57), upon which the Hilary Term Rules of 4 Wm. 4 (1834) were framed.

These rules constitute the first practical step in the direction of a radical reform of civil procedure in England or America. It was a germ which bore fruit more rapidly in the United States than in England, but we must date from these rules in 1834 the impulsive force, which, in sixty years, has changed the civil procedure of the English-speaking people of the world.

It is only proper to say that the general scope of these important rules was-by requiring more specific statement of facts on which the parties based their respective pretensions, and limiting the use of general counts and of the general issue, and by excluding the use of varied formal pleadings of the same substantial cause of action and defence-to simplify and abridge the pleadings, and yet to clarify and expose the real issues in controversy between the parties.

It was a decided, but cautious and not far-reaching, stride towards radical reform. But it stimulated enquiry, and in the New World started the movement in New York, which has taken hold of legislation in a large number of the United States.

In 1848, under a constitutional provision, Messrs. Loomis, Graham and Field made a report, upon the basis of which the Legislature passed the act of April 12th, 1848 (Laws of N. Y., p. 497), " to simplify and abridge proceedings in courts," etc.

Though this first attempt to formulate a radical reform was crude, and has been the subject of much amendment, it is worthy to hold the prime place in the history of the reform of civil procedure in the United States.

It abolished the distinction between an action at law and a suit in equity. Constituted one form of "civil action" to be commenced by summons and notice that plaintiff will take judgment for a sum certain, if action be on contract; or for the particular relief demanded, if cause of action be not for a sum of money,