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matters of the division be connected by falling under one kind of action or remedy; or by resting on some one ground; or connected by established practice, and the best authors, as general pleadings are; or if conveniently studied together.
ANALYSIS OF THE TABLE OF CONTENTS.
In this is seen, in detail, the arrangement of the several parts of the work, divided into 228 chapters, the first words in each expressing the subject matter of it. The chapters are generally divided each into articles, and the first words in each article express the subject of it; and usually each article into sections, and often the first words in the section express the subject of it. So that the matter of each may be readily seen. The 228 chapters contain 1707 articles, and these about 20,000 sections.
As to forms in pleading, a few select ones will be found in this work, and many useful ones referred to, especially in notes of reference at the close of various chapters, many from Wentworth's Complete System of Pleadings (in ten volumes) as it refers to near all the English forms, ancient and modern.
Ist Division. This embraces contracts generally, and the origin, considerations and principles of them, in chapter 1st, considered at large in those parts of the work in which various rights and remedies rest on contracts.
2d Division, Ch. 2.- Various Remedies by the acts of the parties, largely considered on principle, or in detail, under the usual heads.
3d Division, Ch. 3, 4, 5, 6, 7.-Embracing the general grounds and principles of actions in various furins, pursued and explained in detail in subsequent chapters whenever necessary or proper.
4th Division, includes the action of Account, and contracts on which it lies, in chapter 8, as fully considered as is proper in a general abridgment and digest.
5th Division, embraces Assumpsit, and the various contracts on which the action is founded, in chapters 9 to 57. This very large division of the law embraces 49 distinct grounds of action ; that is, simple contracts, applied to so many purposes. It has been found convenient, and no violation of principle, to consider them, generally, in alphabetical order. Though the contracts in this division are many and made to many purposes, and the actions thereon are numerous, they all rest on the same principles; the general issue, and principles of declaring, are the same in all ; and usually a great part of a young lawyer's business belongs to this division.
6th Division. This includes all those Torts, which are the grounds of the action on the case on torts, in chapters 58 to 79. After considering the nature of these toits, and the foundation of this action on the case, generally, in chapters 58 and 59, the several subjects are conveniently treated alphabetically ; collecting generally the law on such subjects.
7th Division.—This includes Evidence, in chapters 80 to 100; also Demurrers to Evidence, and Bills of Exceptions. Each chapter contains its proper branch of evidence, illustrated by cases considered as largely as is consistent with the nature of the work. After treating evidence on general principles, explained by cases, and somewhat at large in chapter 80, the branches of evidence, as in relation to books, copies confessions, character, damages, deeds, depositions, affidavits, hand-writing, hearsay, &c. &c. are considered conveniently enough in the above order.
8th Division. This embraces Covenants, and Actions on them, in their numerous branches, as to personal and real property, in chapters 101 to 124 ; including therein conveyances, in the same deeds covenants are; as the same deed conveys property, and usually by covenants in it assures the property. This division also embraces Seizin and Disseizin, so essential to be attended to in conveyances, and so materially affecting them; also Vouchers on Covenants, and Pleadings peculiar to Covenants and Vouchers.
9th Division, is, as to the various kinds of Estates and Titles to them, in all their usual branches, in chapters 125 to 156, largely considered, on general and common law principles, here recoguized, and American statute law, more especially that of Massachusetts and Maine.
10th Division.—This embraces Writs of Error and certiorari, in chapters 137 and 138. These go together, and make one division; but quite distinct from every other division, their place in the arrangement is indifferent, as they relate to almost all kinds of actions &c.
11th Division. This includes the Grounds of Debt and Detinue, and the Actions of Debt and Detinue thereon, whether contracts, judgments, penal statutes, recognizances, &c. and pleadings peculiar thereto. Though debt is founded on all these grounds, yet it is mainly on penal laws, and on acts done in court &c. and before magistrates-largely treated in chapters 139 to 170. The grounds of this action are more various than those of any other; being 1st, penal laws, governed however, as to these, on the same principles : 2d. Contracts sealed, all as to these on the same principles : 3d. Judgments, uniform as a ground of action : 4th. Such acts by a person, who acknowledges himself bound &c. Having in chapter 139 considered contracts somewhat at large in relation to the action of debt, the several branches follow in the above order, as debt on annuity, contracts, arbitration bonds, awards, &c.
12th Division. This includes the Action of Replevin, and Trespass vi et armis; the various grounds of and pleadings in them ; in chapters 171, 172, and 173.
13th Division.--This embraces General Pleadings, in their several branches, suited to our American practice, and Amendments in pleadings, in chapters 174 to 185, including trials and new trials, and the various matters and laws thereto appertaining, according to the usual arrangements. Also stating what pleas are proper in each kind of action, briefly in personal, at large in ejectments and land actions, except some critical examination in regard to writs of right, to be found in division 28
14th Division. This is as to Pleadings in certain cases, and the grounds and principles thereof; as in audita quarela, mandamus, procedendo, several kinds of prohibitions, quo warranto, informations, &c. in chapter 186.
15th Division. This includes the Principles on which the courts of the United States, and those of Massachusetts, and in substance, Maine, proceed, and on which instituted; and their powers and duties generally, from their earliest establishment to 1821; sundry General Principles, and many Maxims of Law, binding on all courts; in chapter 187. As to this subject, it has been found that but little can be written to any good purpose, while the American courts are so often newmodelled.
16th Division. In this are considered Appeals, in chapter 188 ; Writs of Review, in chapter 189; Writs of Scire Facias, in chapter 190 ; Partitions, in chapter 191 ; and 'Trustee actions, in chapter 192; and the pleadings in each, the grounds thereof, the laws and matters as to each.
17th Division, includes, in chapter 193, a Synopsis, or summary view of Pleadings in the courts of law and equity, in Civil and Criminal Cases, in 45 articles. This is placed between pleadings at large in civil and criminal cases; perhaps many would place it before either. The real object of it is, to afford the student, in some stage of his duties, a correct view in a few pages of the parts and first principles of a complete system of pleadings, and to aid him in avoiding the confusion in bis mind, which an immense number of pleas, and parts of pleadings, naturally produce, when seen but at large, and scattered as they are, in many large volumes.
18th Division. Contains, in chapter 194, sundry matters in Practice in various parts of judicial proceedings. This head is of modern date;
it was never made a distinct branch, or title, in Bacon or Comyns, or any old book by this name.
19th Division, takes into view Costs, the grounds of them, and the most material laws on the subject, in chapter 195.
20th Division, includes a view of Statutes generally, American and English here adopted ; their general principles and construction, and exceptions in them; the effects of repeals, &c. in chapter 196.
21st Division, embraces Crimes and Punishments, in their usual order, and the laws and pleadings as to them, in chapters 197 to 221, not materially varying from Blackstone's arrangement; except the author first considers criminal law, crimes and punishments on general principles, found in later good authors, and in American statutes—has made malice a distinct article, principals and accessaries another in chapter 197—considered together, in chapter 198, in 12 articles, all the crimes, &c. against religion and morality in our country; crimes against the state, and the punishment &c. by our laws, in 11 articles, chapter 199, and in 7 articles, chapter 200, in which felony is made a distinct article ;-other criines against the public, mostly misdemeanors, as against the public justice, the public peace, the public trade, and public police, are considered first, generally, then in detail, in alphabetical order, in 100 articles in chapters 201 to 211 on our laws ;—then crimes against individuals, in 50 articles in chapters 212 to 217;-indictments, in chapter 218 ;-informations, chapter 219;-process and commitment, 220; and pleadings in criminal cases 221-all on our laws, and at large.
22d Division. Includes, in chapter 22, Impeachments. 23d Division.-Statute Titles in most of the States, in chapter 223.
24th Division.-Cases of Seizures, under revenue and other laws, and pleadings in them, in chapter 224.
25th Division.-Federal principles and cases in Equity, in chapter 225.
26th Division.—Pleadings in Equity, English and American, generally, in chapter 226.
27th Division.-Captures, in chapter 227.
In each division, generally, all the rights of persons and of things have been examined with an eye to the action or remedy, in each case the most proper to enforce or establish the right or title. It is the remedy made effectual, which enforces the right and makes it valuable, that claims the lawyer's attention.
To the work are added a Table of Contents; and a copious, expressive Index; also a table of Cases, some of the most material, alphabet. ing plts. names &c. with sufficient minuteness, and distinguishing American from English cases by printing the American in italics. Readily to supply the place of an alphabetical arrangement a short index of six pages is printed in the first volume.
As to causes belonging to divisions 22, 23, 24, 25 and 27, only eminent counsel are usually engaged in them, and they not often. The same remark applies in a good degree to divisions 26 and 28. These seven divisions are last in the arrangement. Though important parts of American law, the subjects are but little noticed by Bacon, and most other abridgments.
The alphabetical order entire.-Several reasons have been stated already for not adopting it—a few may be added : 1st. It does not consist with the nature and principles of our respective actions, or the forms of pleadings in them generally: 2d. It leads the student, in many cases, to read law first, which in its nature is last: 3d. It answers no one purpose, but that of an index in a small degree ; for in the usual form the alphabetical titles are too few to be of much use; hence, to Comyns’ Digest in this order it was found necessary to add an index of 200 pages; the same to Bacon's Abridgment; after trying a very short index a copious one was, from experience, added : 4th. Of late the best legal instructers pay no regard to it, in directing the course of legal studies: 5th. Any index to be useful, must be copious, and generally express concisely the sense of the clause, matter, &c. referred to.
From the commencement of this undertaking, the first object has been to have in it none but sound law; to this purpose invariably, the endeavour has been to rely on the best principles and authorities. Often English decisions do not appear to be repugnant to ours, because the remote principle that makes them so, is not observed. For instance, there is a feudal principle in England, which requires that a man must be actually seized of lands, as well as be the owner of them, to cause them to descend to his heir, and many English decisions rest solely on this principle, though at first view this may not be perceived. We are misled, if we adopt such decisions in those States, in which there is no such principle. The maxim, seisina facit stipitem, is an unyielding one in the English law, which has no place in ours; our lands descend to the heirs of him, who owned them at his death, and not devised, seized or not. Ownership here directs the descent of property in lands in fee, but in England, seizin. So lawyers in one State may be inadvertently misled by decisions in another, made on a remote principle or rule of law understood, but not mentioned in the decisions. For instance, in Connecticut it is a rule, “where a right of possession is lost, all title and ownership is lost.” We have no such principle or rule in Massachusetts, at least as to estates of freehold and of inheritance. Such considerations require research and caution.