Under our peculiar practice damages are assessed, after default or demurrer overruled, by the court; and in actions to recover unliquidated damages the defendant may offer evidence to prove that the plaintiff had no cause of action, or any special matter in defense, and if the evidence satisfies the court that no cause of action exists, nominal damages only can be assessed. The defendant may thus, by assuming liability for nominal damages and a bill of costs, try his case to the court on the merits, unhampered by any pleadings. The opportunity so given for unfair surprise upon the trial is a patent evil, which chapter 220 of Public Acts of 1897 was passed to remedy. The Act is a remedial one and should not be crippled by a narrow interpretation. The Act applies, or authorizes rules of court which would apply, to all cases pending when it went into effect, and declares that in “ any hearing in damages ” the plaintiff shall not he surprised by evidence that does not relate to the amount of damage. Such evidence cannot be introduced unless written notice of intention is given. The mandate of the Act is plain, “no notice, no evidence.”
It is not claimed that the court erred in excluding the evidence, if the statute applies to this action. The defendant’s contention is, (1) that by construction, § 2 of the Act renders § 1 inoperative, until the rules of court mentioned shall have been adopted; and (2) that by construction the rules, which in express terms are made applicable to all actions pending on April 25th, 1898, do not apply to actions of tort made returnable more than seventy days before April 25th, but as to such actions the operation of the statute is still suspended.
First. For the purposes of this case we may assume the defendant’s construction of § 2 to be correct; indeed, we may go further, and assume that the section in explicit language provides that § 1 shall not be operative until the judges *622shall make such rules as to the manner of filing notices and as to the form thereof as they may deem proper.
Secmd. Assuming, then, that § 2 reads as the defendant contends it should read, it is nevertheless certain that its force, to suspend the operation of § 1, is exhausted when the rules have been adopted. Once such rules as the judges deem proper are adopted, every part of the Act is in full force. The rules may work smoothly or with great friction; in either case the provisions of the Act remain unchanged. One rule may be inconsistent with the Act, as claimed by tbe defendant; but if so, it is the rule and not the statute that must give way. We see, however, no inconsistency between the rules and the statute. One rule says that in actions of tort the notice must be filed within seventy days after the return day, and another says that in other actions it must be filed within a limited time after default or demurrer overruled. The defendant affirms that its action is one of tort and that the seventy days expired before the rules were adopted. A similar condition might exist as to actions not of tort. After demurrer overruled, the ten days from the time limited for pleading over (being the time within which notice must be filed) may have expired before the rules were adopted. The defendant claims that in such cases it is impossible to comply strictly with the rule, and therefore the statute as to these cases has no force. The objections to this contention are obvious and insuperable. When § 1 became operative, its mandate applied to every hearing in damages. The defendant, if he wishes to prove any matter of defense, must give the written notice required by the statute; if a rule prescribes an impossible time for filing, he may give the notice, the rule notwithstanding; any other construction of the rule would be most unreasonable.
But the rules themselves fully provide for such emergencies, by authorizing the court to permit, for cause shown, notices to be filed at any time. If a filing within the time prescribed is impossible, the court not only may, but must, grant such permission. From April 25th, when the statute (giving to § 2 the defendant’s construction) became opera-*623five, to October 12tb, when this hearing in damages was had, the defendant had ample time to file his notice in compliance with the rules; and even during the hearing and after his evidence had been rejected, he might have filed his notice in compliance with the rules, upon satisfying the court that his failure to do so before was owing wholly to an honest mistake.
The plaintiffs claim that a new trial should not be granted, even if the court erred in excluding the evidence on the ground stated, because the finding shows that the evidence was wholly irrelevant, and that its exclusion could not have harmed the defendant. On the other hand, the defendant claims that the exhibits, in connection with the parol evidence rejected, were both relevant and material; and also that the court erred in incorporating in the finding facts hearing upon relevancy which had not been the subject of testimony on the trial. As the court properly rejected the evidence because notice of intention had not been given, there is no occasion to consider these questions.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.