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
*39grounds 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In my judgment, after it has been at issue and the pleadings placing it at issue have been withdrawn by the leave of the Court, as in the present instance, the party withdrawing his pleadings is not entitled, as a matter of course, to file a special demurrer.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 *40this Court, at anytime 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 Eevised Statutes of 1852, said: “But Chapter 112 of the Be-vised 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 34., 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.