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
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