through an apprehension that they may entangle their rights in a net work of pleadings, since every additional issue, according to this doctrine, diminishes their chance of recovering.

The plaintiff accordingly, in the case already mentioned, replied separately to the two pleas, namely, to the plea that there was no promise within six years, he replied that the defendant did promise within that time, and to the plea that the action did not accrue within six years, that the defendant was out of the commonwealth when the action accrued, and did not return until within six years of the time of commencing the action. If there had been but one special plea, the plaintiff, as very frequently happens under this rule against double replications, &c. would have been obliged to have chosen which of these two grounds of maintaining his action, which the law professes and intends and ought to allow him, he would give up, and which he would rely upon.

In the same case it happened that this same rule against double pleading in rejoining, embarrassed the defendant also. The law of Massachusetts provides that though a debtor is absent from the state at the time when the right of action accrues, yet, if he leaves property in the state which is liable to attachment at that time, the statute shall begin to run, notwithstanding his absence. And by a decision of the Supreme Court' it will make no difference in this respect whether the property so left is already attached on demands to ten times its value, or is unincumbered, since, though it may be under attachments to any amount, the creditor may still, nevertheless, commence his action, since by the law of the state, the circumstance of the property being in the state, enables him to make a valid service of his process.

The defendant accordingly, in this case, wished to rejoin, both that he was in the commonwealth and that he had property in the commonwealth liable to attachment at the time when the debt became due. But this rule against double pleading prevented him from making both rejoinders, and compelled him to select the one on which he supposed he could most safely rely.

If there had been no rule against double pleading, the pleadings in this case would have resulted in four issues: 1, the general issue; 2, whether the defendant had promised within six

1 Byrne v. Crowninshield, 1 Pick. 263.

VOL. V.-NO. X.

36

years; 3d, whether he was absent from the commonwealth when the action accrued, and had continued absent until within six years; 4th, whether he left property within the commonwealth liable to attachment. Now we cannot imagine any way in which verdicts, that should be consistent with each other, could be rendered on these four issues, so as to occasion the slightest embarrassment to the court in giving judgment; and as to any danger of inconsistent verdicts, in the first place, as we have already said, the court will not allow them, since the jury cannot on oath affirm contradictions; and again, this difficulty, if it be one, presents itself just as palpably under duplicity of pleading in the declaration and pleas, as it would under duplicity in replications, rejoinders, &c. Besides, it is a matter of entire discretion with the court, how far to allow of duplicity in pleas; and it is only necessary to extend the same discretion to duplicity in replications, &c., to secure them effectually in this case also, against that evil apprehended by Coke, whatever it may be, of being 'inveigled.'

The system of pleading at common law, in its general principles, is certainly a striking, and, in some respects, an admirable application of the science of logic. But then we should not be such enthusiastic devotees to its doctrines, as to vindicate in the cabinet and the field, all the hair-splitting and frivolous quibbling to be found under this title in the books of common law; and reduce the practice and the administration of the law to the mere art of puzzling and being puzzled. Every lawyer knows that in the old times, the rights and obligations of parties, were made the stakes in a sort of logical game. When I diligently consider,' says Coke,' 'the course of our books of years and terms, from the beginning of the reign of Edward III., I observe that more jangling and questions grow out upon the manner of pleading and exceptions to form, than upon the matter itself.' The querulous exceptions and scholastic trifling of the 'books of years and terms' have, however, in many respects, given place to good sense and liberal logic. But we are not, therefore, to imagine that the consummation of legal science has ever yet been achieved; and of all its branches, the technical parts, those which necessarily involve more or less of merely

1 Co. Lit. 303 a.

arbitrary rules, are wont to make the tardiest progress, and always advance with difficult and reluctant steps. They lie deep in the recesses of art, removed from the control and influence of the heaving, fluctuating, and changing social world. Men witness and feel the tremendous shocks given to their affairs by the voltaic pile of counts, pleas, replications, and rejoinders, without, however, understanding the mysterious process of its combination to which it owes its power; and an honest client who should be told that he was made or ruined, independently of the rights or obligations which our laws profess to assign him, by the mere circumstance that the word reply or rejoin was not inserted in an English statute some century and a half ago, would be apt to think that the law dealt in magic as well as logic. And if he were also told that the reason why this same reply or rejoin had not found its way into our own statutes, was the fear that the introduction of two or three plain questions, more or less, into his case, with the consent of the judges, in addition to the perhaps seventy-five already disposed of, might have utterly confounded the court, and bewildered both them, the jury, and the parties, in an enchanted thicket of replications, rejoinders, surrejoinders, rebutters, and surrebutters, — would, according to the event of his suit, either thank or curse his stars, that there were men in the world so much wiser than himself.

But persons whose business and delight it is to explore the technical arcana of this occult art, learn by degrees to dwell upon its mysteries with devout enthusiasm, and are apt to be the last to dream of, or tolerate any change whatever. They are too much disposed to consider all things else to be only secondary and incidental to this world of their own, and if the rule of special pleading as limited by the statute of Anne, or if any other dogma of their system, is not adapted to the rights and duties of men, as the law professes to establish those rights and duties, the fault is supposed not to be in that superior and predominant system of single pleading, but in the subordinate appendage to it, the whole mass of the affairs of society. If any change is proposed, if the exquisite perfection of the system, in any of its particulars, is called in question, they are too apt to say, it is misliked by those who understand not the reason thereof.'

As far as this rule against double pleading prevents the parties, in any stage of the proceedings, from alleging, and proving if they can, all their lawful grounds of claim or defence, we profess ourselves to be of the number of those who 'mislike' it, and who do not understand the reason thereof.' The legislature of New York, in the Revised Laws of that state, has abolished this restriction and extended the right of double pleading, in this sense of it, with leave of the court, to replications, &c.; and we should not apprehend any embarrassment to the administration of justice, if some of the other states, where the restricted rule of 4 Anne is still in force, should follow this example.

ART. V.-HORSE CAUSES.

A Treatise on the Law of Warranty of Horses. By R. S. SURTESS, Gent. London.

1831.

'As full of diseases as a horse,' says Shakspeare, and he might have made a comparison in another respect with equal truth, by saying as fruitful of law-suits as a horse;' for of all chattels, the purchase of one of this sort, is the most likely to be the purchase of a suit. But this animal has not yet given a name to any title in the law, for though we have the law of shipping, fisheries, &c., we have as yet no such title as the law of horses. Mr. Surtess proposes to supply this deficiency in a duodecimo treatise of about a hundred pages, in which he intimates that this branch of the law is not as well settled as it would have been, had judges studied farriery more, and the year books less. 'Owing,' he says, 'to the nature of their profession, the judges have not those opportunities of acquiring information, or ascertaining by experience, the various peculiarities and qualifications of the horse, which are necessary to be known in order to arrive at a proper conclusion on points connected with them. Many of their decisions are founded more in theory than practice; and even their theory is often the dicta of veterinary surgeons, and other practical men. But their ignorance of the economy of the horse is not the only disadvantage under which their lordships labor when forming an opinion of what is commonly called a

"horse cause.' The contradictory evidence, not to say perjury, and the stabularian and technical terms which are made use of, tend much to heighten the embarrassment under which they are placed. Far be it from me to say any thing disrespectful to their lordships,' &c.

And the author proceeds to apologise for their lordships, for their ignorance of the ' economy of the horse,' and their mistakes in this branch of the law, premising, at the same time, that no country possesses more competent judges of all law, that of horses not excepted; but still their knowledge on this particular subject is but inconsiderable, for it is a species of knowledge almost incompatible with the grave duties which they have to perform.' And if the subject is one of difficulty to the administrators of the law, how much more difficult is it, says Mr. Surtess, to the ordinary citizen of the world,' who, in addition to his own doubts, has to contend with the opposite doctrines promulgated by the judges, without knowing where to find the decisions, in which those doctrines may have been stated and applied.

6

To assist such ordinary citizens of the world,' the author compiles this short treatise, the second of the kind, it seems, in English, a former one having been published anonymously, entitled The laws relating to horses,' which, however, Mr. Surtess represents to be very imperfect, scarcely touching the subject on which it professes to treat.

6

The author, Mr. Surtess, does not venture to promise a clear exposition of the law relating to horses, which he says would be quite impossible, the cases are so contradictory, and so unsettled is the law.' He supposes that every attempt to reconcile and elucidate the subject, would only make it more obscure. He can therefore only arrange the decisions in a systematical form, 'to enable the reader to draw his own conclusions, as to their bearing and tendency.'

Such is the author's general plan, and as the horse is an interesting animal, and every thing relating to him, not excepting the law, is not without interest, both in and out of the profession, we will follow Mr. Surtess in the cases he has cited; though it will no doubt have already occurred to our readers, that the questions in horse causes' are most frequently those of fact, so that the jury are the persons which it behooved him