ever was to be said about the kettle or the cracking, but the day's work was to consist merely in submitting the certificate of John Brass's birth to show whether or not he was of full age when elected mayor. For if the plaintiff's attorney should argue that, even if the customer had a right to test the kettle, the dealer ought to have damages on proving that she did so with extravagant violence, the judge would pronounce that question not in issue; and declare that he could try only the single question presented by the pleadings-the age of John Brass. Another objection was that unscrupulous attorneys could gain great advantage from errors or variances. Accuracy was of the essence of special pleading; and mistakes were fatal. If, for example, in the certificate of proof of birth produced in evidence, Kettleton happened to be written Nettleton, or 1830 given as 1820, the judge would brush the paper aside because of the variance;" for when, in matters of description, the party was not able to prove exactly what he had pleaded, he was not allowed to prove the truth, and recover according to that, but lost his case altogether. These two features of special pleading rendered it a favorite system with skilful, experienced, yet not particularly high-minded practitioners; for it gave them many opportunities of winning a lawsuit, irrespective of the justice of the case, by means of distorting the issue or taking advantage of discrepancies. Thus the system had friends and supporters among lawyers of various classes.

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The codes of procedure discard the whole system of special pleas, including their ultimate purpose of narrowing issues to single specific points stated before the trial; and they give liberal leave to amend or disregard errors and variances. The pleadings commence with a complaint which states, in ordinary and concise language, the facts in the plaintiff's case, and what he expects to recover. The defendant answers, either denying what the plaintiff has alleged, or, if it is true, stating his justification or excuse for what he has done. These are, usually, all

the pleadings which are required. They show the general nature of the claim and the defence, which straightway come before the court and jury to be tried, and just judgment is rendered according to the true facts as ascertained by a careful and liberal inquiry. It sometimes happens, indeed, that the defendant sets up a cross-claim against the plaintiff; when this is the case, the plaintiff interposes a "reply" stating his answer to the cross-claim. But beyond the reply the pleadings do not extend.

CHAPTER XXII.

THE CIVIL DAMAGE LAWS.

To hold the seller of liquor responsible to pay damages for any mischief done by a drunken man seems a stringent rule, yet this principle has become established law in at least half of the States.

A STRIKING INSTANCE.

The story of a lady of Jones County, Iowa,* well illustrates that it is possible, by means of such a rule, to remedy some part of a wife's loss through her husband's intemperance. The early years of her marriage were happy and prosperous. Her husband was possessed of considerable property, and was successful in a business from which he realized an income of $1500 a year. But habits of drinking fastened themselves upon him. He does not appear to have been a gross drinker of spirits; wine and beer were his principal enemies, but these, excessively as he used them, impaired his powers, unfitted him for labor, and rendered him a confirmed drunkard. There were in the town no less than eight saloons which he frequented in turn, and upon which, after his earnings dwindled to nothing, he was squandering his capital. The wife visited the saloon-keepers and urged them to cease supplying her husband with liquor. Some of them assented; but the husband, on learning why it was refused to him, declared to her that if the prohibition were not removed he would abandon her and carry away their child. Under this compulsion, she went with him to the saloons, and reluctantly gave some consent that liquor might be sold to him.

* Jewett v. Wanshura, 43 Iowa, 574.

When she had done this, her prospect must have seemed dark. But, just in time for her relief, the law was passed declaring that the seller of liquor shall pay for the harm it does. She brought lawsuits against the eight saloon-keepers for the injury done to her in making her husband a drunkard, and reducing her from affluence to poverty. Most of them paid her something to stop the suits. One of them stood out and resisted her claim. The result was that the jury condemned him to pay $1000, to reimburse the money her husband had squandered, and $200 more by way of punishment.* The dealer complained of this as unjust, because he had sold only beer and wine, and the wife had given him leave; and because $1200 was too much in any case. The judges said that it was no matter what he sold, the husband was made a drunkard by it; that he might have known that a wife coming with her husband to say he might buy liquor, only came because he compelled her to do so—she did not really mean it; and that the verdict was not at all too high, considering the property and income the husband had lost.

GENERAL NATURE OF THESE LAWS.

This law declaring that the seller of liquor shall pay for the harm it does is what is called a Civil Damage law. Twenty-five or thirty years ago, at about the time when Maine, under the influence of Neal Dow, enacted her prohibitory law, then a new measure of temperance legislation, Indiana † and Ohio proposed, in contrast, this project of a law embodying the principle that as the seller of liquor derives the profits, he should pay the dam

*These are the sums stated in the official report: an earlier account of the case was that the lady recovered $10,000 actual and $2000 punitory damages (8 Chic. Leg. N. 324; Lawson's Civ. Dam. L. 40); but these figures are, probably, a misprint.

+ The Indiana law (1853) seems to have been regarded as repealed by the unintended effect of a prohibitory law passed in 1855. The Ohio law (1854) has very generally been regarded as the original type of these statutes.

ages. It allowed the losses directly attributable to the sale of liquor to be charged to the seller. It gave an action of damages against him in favor of persons injured by the intemperance he promoted. Whoever suffered from the drinker might sue the seller. The experiment met with success, and the principle has been extensively introduced, with varying modifications.

To take the New York law* as a specimen of these enactments, it reads as follows: "Every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons."

The language of the corresponding laws in other States differs, and auxiliary provisions vary; but the substance is about the same. One difference, however, is important. In a majority of the States which have adopted the Civil Damage law, no notice is taken whether the sale was or was not a lawful one. The saloon-keeper may obtain a license, comply with all the requirements of the law, and make only sales which the law permits, and yet be sued if the buyer becomes drunk and does damage. This is the policy adopted in New York, also in Massachusetts, Illinois, Nebraska, Iowa, Kansas, Michigan, Ohio, and Wisconsin. It is no defence to a suit for civil damages that the tavern-keeper was selling according to law. Not so in Connecticut, Indiana, Maine, New Hampshire, Pennsylvania, Rhode Island, and Vermont. In these States the seller is only liable for damages where, in selling, he has violated the law. The State imposes strict regulations upon the traffic; if the dealer obeys them, he is not chargeable. If he breaks them, as by selling on Sunday,

* Laws of N. Y., 1873, ch. 646.