The New Rules of Pleading of the Hilary Term, 1834

The old system of pleading has passed so completely into the limbo of things forgotten that the title of this paper is not intelligible without an explanation. I must, therefore, remind the reader that, in pursuance of the Second Report of the Common Law Procedure Commissioners, which was issued in 1830, the Judges made some new general rules as to pleading in the Hilary Term of 1834 which, on the whole, tended to aggravate the existing evils of the common law system of special pleading, by making special pleading compulsory where it had before been only optional. Something was done to alleviate these evils by the Common Law Procedure Acts of 1852, 1854, and 1860; but they were not wholly eliminated till the new system of procedure and pleading introduced by the Judicature Acts. The result was that right down to the Judicature Acts the system of pleading was the old system; and, subject to the modifications introduced by the Common Law Procedure Acts, the old system aggravated by the new pleading rules of the Hilary Term, 1834. Now it seems to me that there are certain developments in common law doctrine in the nineteenth century which may in part, at least, be traced to the indirect influence of these new pleading rules. But it is obvious that before I can even state my thesis I must explain some of the characteristics of the old system of special pleading, and the effect of these new pleading rules. I shall therefore divide this paper into these three parts, and deal firstly with certain characteristics of the old system of special pleading; secondly, with the new pleading rules of the Hilary Term, 1834; and thirdly, with the question of their effect on the development of the substantive law.