Page:Federal Reporter, 1st Series, Volume 1.djvu/52

 44 PEDEBAL EEPOBTEB. �pleaded, the directing of a bill of particulars, and the prae- tice of requiring pleadings to be made more definite and cer- tain, on motion. The practice of referring the truth of the plea may account for the want of precedents for such an order. It could not be questioned that it -would be a rea- sonable rule of court that in ail cases where a record is pleaded it should be set forth in the bill, or the plea in hœc verba, or by copy annexed to the bill or plea, unless for cause shown excused by the court ; and I think it is equally evident that, where justice and the interest of ail the parties require it, or will not be prejudiced by it, and the court may thereby be relieved of hearing and deciding a merely imaginary case, the same thing may be directed by special order. There is nothing in the statutes, or the rules, or the principles of prac- tice to prevent it. �I eau see nothing in the rules of the supreme court to in- terfere with the granting of this motion. It is true that rules 33—38 imply that the plaintiiï will demur, reply or set down for argument. This is but the embodiment in rules of the ordinary chancery practice. The reference asked for is merely preliminary to setting down for argument or replying to the pleas. It is not iijconsistent with the rules. These rules do not purport to regulate ail the points of practice, and they exnressly adopt the principles of practice of English chancery not inconsistent with these rules. It cannot be assumed that they were intended to make the practice more difficult and cumbersome, but rather to facilitate and simplify it. Therefore, a practice obtaining in the English chancery not expressly or obviously inconsistent with the rules, and which tends strongly in the direction of abbreviating litiga- tion and relieving the parties and the court from unnecessary proceedings, should be deemed as adopted by the ninetieth rule. This practice is of that nature. �Cases cited in which it appears that the truth of the plea as to the existence of the record lias been tried under plea and replication in ordinary course, are of no account, for without question the plainfciff may take that coursa if he ��� �