Page images
PDF
EPUB

tice, and been decided to be sufficient, and all have been carefully examined, adapted to the new rules, and annotated.

The modern Statutes and Rules relating to Practice and Pleading are so peculiarly important, that it has been deemed advisable to print the same in the Appendix concluding this Volume ; and Students and Practitioners will find it essential to read them attentively, so as to be well informed upon their general inport, and not merely to refer to them occasionally.

The practitioner who will resolve to make himself master of these confessedly dry but essential subjects of legal knowledge, will soon find himself on the vantage ground, and in many collateral circumstances, especially as regards Evidence, would be enabled to anticipate advantages or difficulties which others could not perceive ; at all events, he cannot safely even commence an action without being well informed upon all subjects relating to the parties to an action, which constitute the basis of the subsequent proceedings.

12th May, A. D. 1836.

PREFACE

TO THE FIRST EDITION.

In submitting this treatise to the public, it may not be improper to prefix a short prospectus or analytical view of its contents, by which the reader may be enabled to judge, how far the subject proposed to be considered may be worthy of his attention.

Upon the Practice of the courts of common law, there are already before the public several very able treatises; but there is no work of any magnitude which points out, the Parties to Actions, or the Forms of Action, or the Pleadings therein; and the very frequent defects in actions and defences, occasioned by mistakes in these points, sufficiently evince the utility of a practical work upon the subject; I have therefore been induced to submit the following pages to the profession.

In the first chapter, which relates to The Parties to an Action, I have endeavored to point out who should be made the plaintiffs and who the defendants, as well in actions on contracts as for torts, and not only with reference to the interest and liability of the original parties, and the number of them, and whether standing in the situation of agents, joint-tenants, tenants in common, or partners, and who are to join or be joined; but also where there has been an assignment of interest, or change of credit, or survivorship between several, or death of all the contracting parties, or bankruptcy, insolvency or marriage. The consequences of mistakes in the proper parties, and how they are to be taken advantage of, and when they are aided, are also pointed out.

In the second chapter are considered the Form and the particular Applicability of each Action; the pleadlings, judgment, and costs therein in general; the consequences of mistake; the Joinder of different Forms and of different rights of action; the consequences of Misjoinder; and the Election of the best Vol. I.

C

remedy, where the plaintiff has the choice of several. In considering each personal action, viz. assumpsit, debt, covenant, detinue, case, trover, replevin, trespass, and ejectment, I have endeavored to confine my observations to the cases where the action is sustainable, or when it is preferable to another remedy, without inquiring into the nature of rights or of injuries, which would have been foreign to the object of this treatise (a). I have, however, in one instance, thought it advisable to depart from this plan, in order the better to explain the distinction between the action of trespass and that of trespass on the case ; and for this purpose I have endeavored to state the distinctions between torts committed in fact, or in legal consideration, with and without force, and between torts immediate and consequential, and how far the legality of the original act, or the defendant's intention, may affect the form of action, and the difference arising from the circumstance of the defendant's having acted under color of process. The consequences of mistake in the form of action are also stated.

The Joinder of different Forms, and of different Rights of action, and the consequences of mistake, are of the greatest importance to the success of a cause, and I have, therefore, with some minuteness, pointed out the particular instances of joinder, which may be most likely to arise in practice.

In various cases the plaintiff has an Election of several different forms of action for the same injury, and a judicious choice is so material, that it may frequently enable the plaintiff to enforce his claim, which would be defeated or delayed by the adoption of a different course; I have therefore stated several leading points, which may direct the Pleader in his choice of the various remedies.

In the third chapter, a few General Rules relating to Pleading are collected, and pursuing the definition of pleading (viz. a statement in a logical and legal form of the facts of which

(a) In many works, under the title of a particular action, we find the nature of rights considered; as, for instance under the head " Assumpsit,” after stating that it lies on a bill of exchange, we find the whole law upon bills of exchange is collected. This is not a convenient mode of arranging the subject in a pleading point of view, where the object of inquiry is merely the application of the form of action, and not the right.

the Courts are not bound, ex officio, to take notice,) I have first pointed out what facts are necessary to be stated, distinguishing those of which the Court will, ex officio, take notice, without their being shown in pleading ; and secondly, the mode of stating those facts with reference to certainty, and other particulars; and thirdly, I have considered the rules of construction, concluding the chapter with the division of the parts of pleading.

The fourth chapter relates to the form and requisites of the Præcipe, when the plaintiff proceeds by special original, and of the Declaration in personal actions; and with respect to the latter, are stated, first, the general requisites, and secondly, the different parts, and more particular requisites, whether in actions founded on contracts or for torts. In assumpsit, the appropriate special and common counts are fully examined, and the structure of declarations in debt and covenant is separately and distinctly considered.

Actions in form ex delicto are so multifarious, that I have thought it better to refer the reader to the Precedents and Notes in the Second Volume, than to attempt, in the First, to point out the structure of the declaration in each particular case; I have, however, considered the general rules to be observed in framing declarations in actions for torts, and which will be found to relate to the statement of, Ist, the matter or thing affected ; 2dly, the plaintiff's right or interest; 3dly, the injury; and, 4thly, the resulting damages.

The utility of Several Counts in the same declaration, and the forms thereof, are also treated of in this chapter, which concludes with a summary of the instances in which different defects in a declaration will be aided.

The Claim of Conusance, statement of the defendant's Appearance and Defence, the Demand of Oyer, and statement of a Deed upon it, and the different descriptions of Imparlances, being connected with Pleading, are examined in the fifth Chapter.

In the remaining chapters are considered in their natural order-Pleas to the Jurisdiction and in Abatement, and the proceedings thereon; pleas in Bar to the action, and Avowries, and Cognizances in replevin, and pleas and notices of Set-off";

Replications and New Assignments, and pleas in bar to avowries and cognizances in replevin ; Rejoinders, and the subsequent Pleadings; Issues, Repleaders, Pleas Puis Darrein Continuance ; Demurrers, and Joinders in Demurrer; and this Volume concludes with a copious Index of the Contents.

As the principal object of the First Volume is directed to the statement of the General Rules affecting the Pleading, I have thought it advisable in a Second Volume to give Precedents of the Pleadings most likely to occur in practice, with notes. The contents of this Second Volume will appear from the Analytical Table prefixed, and from the Index at the end of the Third Volume.

The form of Courts, (being the commencements and conclusions of declarations in each Court, and in particular actions,) are incorporated in the present edition ; but as the Precedents of Declarations on Bills of Exchange, Checks, and Promissory Notes, are printed in the appendix of my workon Bills of Exchange, they are not given at length in the Second Volume. The counts for common debts, in all the cases which ordinarily occur in practice, are given, on account of their great utility; the statement of the subject matter of the debt in these Precedents, not only serving in declarations in assumpsit, but also in debt on simple contract, pleas and notices of set-off, and in affidavits to hold to bail.

In stating different titles to real property, and the conveyances and other means by which such titles have been acquired, the pleader frequently has very considerable difficulty; I have therefore given a great variety of Precedents under this head. With respect to other special counts, and to pleas, replications, rejoinders, &c. I have endeavored to give one or more of the most usual Precedents under each head, and have in general, in the notes, referred to the Precedents which may be found in print. It was impracticable to give a Precedent for every case which might occur, but those contained in this Volume may be readily applied to the particular circumstances of each case, or at least may assist in the structure of other pleadings; and

« PreviousContinue »