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PL E A DING:

WITH COPIOUS NOTES ON PLEADING, PRACTICE AND EVIDENCE.

BY THE LATE

JOSEPH CHITTY, JUN. ESQ.

THE SECOND EDITION,

CONTAINING REFERENCES TO ALL THE CASES DECIDED UPON

THE NEW RULES OF PLEADING,

AND

Short Preliminary Observations

ON THE MORE IMPORTANT SUBJECTS.

BY HENRY PEARSON, Esq.

OF THE MIDDLE TEMPLE, BARRISTER AT LAW.

“ORABUNT CAUSAS MELIUS."-Virg. Æn. VI. 850.

LONDON:
W. BENNING AND CO., LAW BOOKSELLERS,

43, FLEET STREET.

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PREFACE.

The Common Law Commissioners (a) observed, in their able report upon which the New Rules of Pleading were mainly founded, that in the event of their recommendations being adopted, some difficulties would probably occur in the outset with respect to the proper form of pleading in particular cases, and to the course of the evidence upon particular issues; but they anticipated that within a short period the principles of the new law would be permanently settled, at the expense of some adjudged cases.

After a lapse of thirteen years from the promulgation of the New Rules, I believe the period anticipated by the Commissioners has arrived; and taking the first edition of this book as a groundwork, I have endeavoured to produce in a compendious form, a complete collection of all the ordinary precedents in pleading, with copious notes upon the law practice and evidence, connected with each precedent; but as compression has been my aim, I could not, without swelling the book to a most inconvenient bulk, do more than refer to many precedents of less usual occurrence, which are to be found at length in the reports. I think it right to state, that but little of the first edition of this work has been preserved, at least as respects the pleas and replications, the forms, in many instances having been entirely remodelled by myself, and several new ones added; in addition to which, I have rewritten nearly all the notes, and such of the precedents as I have retained, I have carefully resettled in accordance with the most recent cases. I have also prefixed short preliminary observations to the more important subjects; these observations are intended to convey the general leading principles of the law connected with each title (6), and for this purpose I have, in framing them, selected all that appeared to me to be valuable in the notes of

(a) The Commissioners were J. B. Bosanquet, Esq., E. H. Alderson, Esq., J. Patteson, Esq., and Serjeant Stephen; the first three were subsequently raised to the Bench.

(6) An apparent exception to this principle occurs in p. 147, in consequence of the observations having been, by mistake, printed before the title of the count for use and occupation, to which count alone these observations have reference.

the former edition of this work, interweaving with them references to the most recent reported cases, or the best modern treatise, where further information may be acquired. This I thought might be useful, as affording to the practitioner a ready clue to necessary information on the subject, upon which he might, possibly with inadequate time allowed him, be called upon to prepare pleadings. A reference to the preliminary observations on the common counts and particulars of demand in assumpsit, pp. 45 to 48; on the effect of the general issue in that action, pp. 216 to 231; to the articles "limitations,” p. 356, “judgment recovered,” p. 347, “ payment,” p. 370, “ rescinded contract,” p. 384,“ set-off," p. 388," tender,” p. 402, “ bonds,” p. 419, and“ public companies,” p. 380, will best explain the plan of the work in this respect.

I believe all the reported cases that have been decided on the New Rules of Pleading will be found referred to either directly in this work, or indirectly by reference to other cases in which they are cited; but in a book intended to contain the points of nearly five thousand cases, mistakes and omissions are of natural, and I hope pardonable, occurrence. I am not unaware of the difficulty of the task I have attempted, and I therefore offer the work to the profession with some diffidence. I will merely add, that though I have, in some few instances, hazarded suggestions and opinions unsupported by authorities, I have never done so without previously submitting them to several professional friends of considerable experience, and eminent for their knowledge of the science of pleading; from all of whom I have invariably received the most kind and ready assistance, and to whom, I beg leave, in this general way, to return my acknowledgments.

I must apologise for the length to which the Index has extended; but those who know how much of the practical utility of a book depends upon the index being full and complete, will, I trust, pardon a little prolixity in that part.

HENRY PEARSON.

5, Brick Court, Temple,

April, 1847.

TO

THE RIGHT HONOURABLE

SIR JAMES PARKE,

ONE OF THE BARONS OF HER MAJESTY'S COURT OF EXCHEQUER,

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