OPINION.

If this section had been in force at the time, it is highly improbable that the Court would have refused the amendments asked in the two cases above cited.

Since the Code of 1852 the Court has been very liberal in the allowance of amendments, and the power to impose terms-usually the payment of costs-has generally been found sufficient to check frivolous applications.

After issue joined it is usual to allow the pleas to be withdrawn for the purpose of demurring, and we know of no good reason, or of any practice in recent years, which would warrant us in restricting the privilege to a general demurrer.

The proposed special demurrer appears to be proper and necessary to secure accurate and definite allegations as to the nature and character of the plaintiff's cause of action, without which the defendant would be embarrassed in his pleading and in his preparation for trial.

A majority of the Court are of the opinion that the application of the defendant for leave to withdraw his pleas for the purpose of demurring specially should be allowed, and it is so ordered.

GRUBB, J.:-I concur with Judge Spruance in allowing this particular special demurrer to be filed in this case. I think the special causes of demurrer as read to us show us that they are reasonably material and necessary for obtaining a proper presentation of the case in the plaintiff's declaration, so that the defendants may be informed with reasonable certainty as to the grounds upon which the plaintiff bases his cause of action, and may thus secure a determination thereof according to the real merits; and I do not think that the declaration, in the particular respects referred to in the special causes of demurer, does that. The averments in the declaration do not clearly appear to be sufficient for the defendants to know, or the Court to pronounce a proper judgment which would show, in case this matter came before this or any other Court in any other action or proceeding, with requisite certainty, what were the precise

OPINION.

grounds upon which a judgment might be rendered in this Court in this case. These are adequate reasons for requiring a proper presentation of the plaintiff's case, in his declaration, and for allowing the special demurrer for that purpose.

While in this particular case, I think it is proper for the defendants to file the special demurrer they have presented to us, yet I do not consider that this Court is required to allow any or every special demurrer to be filed which may be presented before it by any party to a case. While this matter is placed by the statute in the power of the Court, it is nevertheless a power that is to be exercised according to the sound judicial decision of the Court, and not otherwise.

Thompson vs. Thompson, 6 Houst., 230.

Nor do I think that any party is entitled, ad libitum, to file his special demurrer after the case has been at issue.

In my judgment, after it has been at issue and the pleadings placing it at issue have been withdrawn by the leave of the Court, as in the present instance, the party withdrawing his pleadings is not entitled, as a matter of course, to file a special demurrer. But it is entirely within the discretion of the Court to allow this or not, according as the Court may determine, after due consideration of the pleadings and circumstances, and of the nature of the special causes of demurrer presented in the particular case. I say this so as to make it clear that I think the Court should exercise a sound judicial discretion as each case is presented to it.

That this Court has the power to allow a special demurrer to be filed under the circumstances and subject to the qualifications I have stated, and on such terms as shall be just and reasonable, I have no doubt.

It is true that, in Robinson and Ponder vs. Holland, 2 Harr., 445, this Court held that the defendant could not be permitted to withdraw his pleadings and demur specially. But this was in 1838, and prior to the enactment of Section 11, Chapter 112 of the Revised Statutes of 1852. Said Section 11 especially empowers

OPINION.

this Court, at any time before judgment, to "allow amendments either in form or substance, of any process, pleading or proceeding" in any civil cause therein pending, on such terms as shall be just and reasonable.

In referring to this subject in Waples vs. McIlvaine's Admr., 5 Harr., 383, Judge Harrington, who was one of the compilers of the Revised Statutes of 1852, said: "But Chapter 112 of the Revised Code was reported and passed avowedly for reforming the law of amendments, and of conforming our practice to the recent improvements in the practice both of the English and American courts. Its object is to remove from the administration of justice the stigma, too often applicable to it, of trying technical questions, rather than merits; and deciding causes on issues apart from the objects of the suit."

Therefore, in this State, since 1852, the previous strictness in the practice of this Court has been relaxed, and greater liberality in allowing corrections of errors and defects in the pleadings has prevailed, with a view to having the miscarriage of causes upon mere technical and formal grounds avoided, and the substantial grounds of the controversy conveniently and certainly reached and determined according to the real merits, as manifestly designed by Section 24, Article 4, of the Constitution, and by Chapter 112 of the Revised Code.

That this modern relaxation and liberality is to be extended to demurrers is shown by the recent statute of 1899, Chap. 303, Vol. 21, p. 582, which allows a party against whom a general or special demurrer is decided, to take a judgment of respondeat ouster, and have the right to amend or plead over, after the entry thereof, to the facts by way of traverse or otherwise.

That the authorization of these improvements in our practice is within the legislative power and discretion, seems obvious, inasmuch as there does not clearly appear to be any constitutional inhibition, express or implied, to the contrary.

DISSENTING OPINION.

LORE, C. J., (dissenting):

This is an application by the defendant after issue joined upon the merits, to withdraw all pleas, and file a special demurrer, to a matter of form only.

There has never been any doubt in my mind as to the power of the Court to permit amendment of pleadings, either in form or in substance, at any time before judgment. This power is expressly given in Section 24, Article 4 of the present Constitution; and is the same as in that of the Constitution of 1831. Section 11 of Chapter 112 of the Revised Code, in no wise enlarges this power. The exercise of this power is in the discretion of the Court.

The Court in the exercise of that discretion, after a large experience, decided that after issue joined upon the merits, it would not permit the plea of statute of limitation, a special demurrer, or any plea not going to the merits.

Burton vs. Waples, 3 Harr., 75; Waples vs. McGee, 2 Harr., 444; Robinson and Ponder vs. Holland, 2 Harr., 445.

In the last named case it was decided that a special, demurrer would not be allowed-the very question now before us.

This ruling has been acquiesced in and found to operate wisely for the last sixty years. It is founded upon the constitutional and true purpose of all pleading, viz., the attainment of an issue, either of law or fact, and the determination of causes according to their real merits; and not suffering time to be wasted or frittered away upon mere matters of form.

It is now proposed to overrule these decisions, in the absence of any new condition, and to depart from a safe, wise and absolutely uniform rule; and to embark upon the uncertain field of what amendments in mere matters of form the judicial mind for the time being may deem admissible. It will tend to encourage laxity in pleading; to delay trial of causes upon their merits and introduce confusion for certainty. In my judgment it is a very dangerous ruling.

It is admitted in this case that the special demurrer is to

DISSENTING OPINION.

mere matter of form and does not go to the merits. If it was a matter of substance, a general demurrer would avail, which is always admissible.

On December 20th the demurrer was argued.

The narr consisted of three counts; the first of which was as follows:

"For that whereas, before and at the time of the committing of the grievances by the said defendants, as hereinafter next mentioned, the said plaintiff was the owner of a certain messuage, or open lot of land, with the appurtenances, situated and being at No. 312 East Second Street, and in the City of Wilmington, County aforesaid, and a certain action of complainant, called an injunction bill, had been commenced by defendants, against the said plaintiff and then was depending for restraining the plaintiff from building, or completing any building or work, or placing any structure, or material upon the lot of the plaintiff with the appurtenances, above mentioned and described, in the Court of Chancery of the State of Delaware, in and for New Castle County; wherein said defendants were the complainants and the said plaintiff in this suit was the defendant, and the plaintiff in this aforesaid Chancery Bill or suit had been served with a rule and restraining order, issued for the plaintiff in this suit and served upon him by John E. Taylor, Sheriff of New Castle County, to wit; the twentyfourth day of August, A. D. 1899, to wit: at New Castle County aforesaid, and the said Sheriff made return August twenty-ninth, A. D. 1899 to said Court, as follows, to wit: "Served personally on John MacFarlane, August 24, 1899." And the said plaintiff was the owner of said mentioned lot of land, with the appurtenances, and had the right to build thereon, and was building and constructing, a dwelling house thereon, for his own use and purposes, yet, the said defendants contriving and wrongfully and unjustly intending to injure the said plaintiff, and to subject him to costs of said action, damages, loss of material, time and money, heretofore, to wit; at New Castle County against the will of the