The most important matter dealt with by the rules is the mode
of pleading. The authors of the Judicature Act had before them two
systems of pleading, both of which were open to criticism. The
common law pleadings (it was said) did not state the facts on which
the pleader relied, but only the legal aspect of the facts or the inferences
from them, while the chancery pleadings were lengthy, tedious
and to a large extent irrelevant and useless. There was some
exaggeration in both statements. In pursuing the fusion of law and
equity which was the dominant legal idea of law reformers of that
period, the framers of the first set of rules devised a system which
they thought would meet the defects of both systems, and be appropriate
for both the common-law and the chancery divisions. In a
normal case, the plaintiff delivered his statement of claim, in which
he was to set forth concisely the facts on which he relied, and the
relief which he asked. The defendant then delivered his statement
of defence, in which he was to say whether he admitted or denied
the plaintiff’s facts (every averment not traversed being taken to be
admitted), and any additional facts and legal defences on which he
relied. The plaintiff might then reply, and the defendant rejoin, and
so on until the pleaders had exhausted themselves. This system
of pleading was not a bad one if accompanied by the right of either
party to demur to his opponent’s pleading, i.e. to say, “admitting
all your averments of fact to be true, you still have no cause of
action,” or “defence” (as the case may be). It may be, however,
that the authors of the new system were too intent on uniformity
when they abolished the common-law pleading, which, shorn of its
abuses (as it had been by the Common Law Procedure Acts), was
an admirable instrument for defining the issue between the parties
though unsuited for the more complicated cases which are tried
in chancery, and it might possibly have been better to try the new
system in the first instance in the chancery division only. It should
be added that the rules contain provisions for actions being tried
without pleadings if the defendant does not require a statement of
claim, and for the plaintiff in an action of debt obtaining immediate
judgment unless the defendant gets leave to defend. In the
chancery division there are of course no pleadings in those matters
which by the rules can be disposed of by summons in chambers
instead of by ordinary suit as formerly.
The judges seem to have been dissatisfied with the effect of their former rules, for in 1883 they issued a fresh set of consolidated rules, which, with subsequent amendments, are those now in force. By these rules a further attempt was made to prune the exuberance of pleading. Concise forms of statement of claim and defence were given in the appendix for adoption by the pleader. It is true that these forms do not display a high standard of excellence in draftsmanship, and it was said that many of them were undoubtedly demurrable, but that was not of much importance. Demurrers were abolished, and instead thereof it was provided that any point of law raised by the pleadings should be disposed of at or after the trial, provided that by consent or order of the court the same might be set down and disposed of before the trial (Order xxv. rules 1, 2). This, in the opinion of Lord Davey in 1902 (Ency. Brit., 10th ed., xxx. 146), was a disastrous change. The right of either party to challenge his opponent in limine, either where the question between them was purely one of law, or where even the view of the facts taken and alleged by his opponent did not constitute a cause of action or defence, was a most valuable one, and tended to the curtailment of both the delay and the expense of litigation. Any possibility of abuse by frivolous or technical demurrers (as undoubtedly was formerly the case) had been met by powers of amendment and the infliction of costs. Many of the most important questions of law had been decided on demurrer both in common law and chancery. Lord Davey considered that demurrer was a useful and satisfactory mode of trying questions in chancery (on bill and demurrer), and it was frequently adopted in preference to a special case, which requires the statement of facts to be agreed to by both parties and was consequently more difficult and expensive. It is obvious that a rule which makes the normal time for decision of questions at law the trial or subsequently, and a preliminary decision the exception, and such exception dependent on the consent of both parties or an order of the court, is a poor substitute for a demurrer as of right, and it has proved so in practice. The editors of the Yearly Practice for 1901 (Muir Mackenzie, Lushington and Fox) said (p. 272): “Points of law raised by the pleadings are usually disposed of at the trial or on further consideration after the trial of the issues of fact,” that is to say, after the delay, worry and expense of a trial of disputed questions of fact which after all may turn out to be unnecessary. The abolition of demurrers has also (it is believed) had a prejudicial effect on the standard of legal accuracy and knowledge required in practitioners. Formerly the pleader had the fear of a demurrer before him. Nowadays he need not stop to think whether his cause of action or defence will hold water or not, and anything which is not obviously frivolous or vexatious will do by way of pleading for the purpose of the trial and for getting the opposite party into the box.
Another change was made by the rules of 1883, which was regarded by some common law lawyers as revolutionary. Formerly every issue of fact in a common law action, including the amount of damage, had to be decided by the verdict of a jury. “The effect of the rules of 1883,” said Lord Lindley, who was a member of the rule committee, “was to make trial without a jury the normal mode of trial, except where trial with a jury is ordered under rules 6 or 7a, or may be had without an order under rule 2” (Timson v. Wilson, 38 Ch. D. 72, at p. 76). The effect of the rules may be thus summarized: (1) In the chancery division no trial by jury unless ordered by the judge. (2) Generally the judge may order trial without a jury of any cause or issue, which before the Judicature Act might have been so tried without consent of parties, or which involves prolonged investigation of documents or accounts, or scientific or local investigation. (3) Either party has a right to a jury in actions of slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage, upon notice without order; (4) or in any other action, by order. (5) Subject as above, actions are to be tried without a jury unless the judge, of his own motion, otherwise orders.
Further steps have been taken with a view to simplification of procedure. By Order xxx. rule 1 (as amended in 1897), a summons, called a summons for directions, has to be taken out by a plaintiff immediately after the appearance of the defendant, and upon such summons an order is to be made respecting pleadings, and a number of interlocutory proceedings. To make such an order at that early stage would seem to demand a prescience and intelligent anticipation of future events which can hardly be expected of a master, or even a judge in chambers, except in simple cases, involving a single issue of law or fact which the parties are agreed in presenting to the court. The effect of the rule is that the plaintiff cannot deliver his statement of claim, or take any step in the action without the leave of the judge. In chancery cases the order usually made is that the plaintiff deliver his statement of claim, and the rest of the summons stand over, and the practical effect is merely to add a few pounds to the costs. It may be doubted whether, as applied to the majority of actions, the rule does not proceed on wrong lines, and whether it would not be better to leave the parties, who know the exigencies of their case better even than a judge in chambers, to proceed in their own way, subject to stringent provisions for immediate payment of the costs occasioned by unnecessary, vexatious, or dilatory proceedings. The order does not apply to admiralty cases or to proceedings under the order next mentioned.
The Supreme Court of Judicature Act (Ireland) 1877 follows the same lines as the English acts. The pre-existing courts were consolidated into a supreme court of judicature, consisting of a high court of justice and a court of appeal. The judicature acts did not affect Scottish judicature, but the Appellate Jurisdiction Act included the court of session among the courts from which an appeal lies to the House of Lords.
JUDITH, THE BOOK OF, one of the apocryphal books of the
Old Testament. It takes its name from the heroine Judith
(Ἰουδίθ, Ἰουδήθ, i.e. יְהוּדִית, Jewess), to whom the last nine of
its sixteen chapters relate. In the Septuagint and Vulgate
it immediately precedes Esther, and along with Tobit comes
after Nehemiah; in the English Apocrypha it is placed between
Tobit and the apocryphal additions to Esther.
Argument.—In the twelfth year of his reign Nebuchadrezzar, who is described as king of Assyria, having his capital in Nineveh, makes war against Arphaxad, king of Media, and overcomes him in his seventeenth year. He then despatches his chief general Holofernes to take vengeance on the nations of the west who had withheld their assistance. This expedition has already succeeded in its main objects when Holofernes proceeds to attack Judaea. The children of Israel, who are described as having newly returned from captivity, are apprehensive of a desecration of their sanctuary, and resolve on resistance to the uttermost. The inhabitants of Bethulia (Betylūa) and Betomestham in particular (neither place can be identified), directed by Joachim the high priest, guard the mountain passes near Dothaim, and place themselves under God’s protection. Holofernes now inquires of the chiefs who are with him about the Israelites, and is answered by Achior the leader of the Ammonites, who enters upon a long historical narrative showing the Israelites to be invincible except when they have offended God. For this Achior is punished by being handed over to the Israelites, who lead him to the governor of Bethulia. Next day the siege begins, and after forty days the famished inhabitants urge the governor Ozias to surrender, which he consents to do unless relieved in five days. Judith, a beautiful and pious widow of the tribe of Simeon, now appears on the scene with a plan of deliverance. Wearing her rich attire, and accompanied by her maid, who carries a bag of provisions, she goes over to the hostile camp, where she is at once conducted to the general, whose suspicions are disarmed by the tales she invents. After four days Holofernes, smitten with her charms, at the close of a
