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the decisions of a very learned judge; they were capable of revision, and they were not afterwards questioned. Laughan v. Pointer, 5 B. & C. 447.

The importance of a nisi prius case, when acquiesced in by learned counsel, is thus stated by Graham, B., who grounded his opinion upon a case of that character, “considering what able men were counsel upon that occasion, it is not to be supposed for a moment, that if that decision could have been questioned, it would not have been carried further. But all the world acquiesced in it; the parties and their counsel acquiesced in it, and the conduct of the parties is a great matter in these mercantile transactions. They see, and know, and understand the language of the royal exchange and the course of commercial dealing, and they would, therefore, if that decision could have been questioned, have carried it further." 1 M'Clel. & Young, 181.

Mansfield, C. J., gives a strong tribute of applause to an entire series of nisi prius reports, showing to what degree of accuracy such opinions may reach. Speaking of Lord Campbell's Report, of Lord Ellenborough's Nisi Prius Opinions, "it is utterly impossible (he says) for any judge, whatever his learning and abilities may be, to decide at once rightly upon every point which comes before him at nisi prius. And whoever looks through Campbell's Nisi Prius Reports, will be greatly surprised to see, among such an immense number of questions, many of them of the most important kind which came before that noble and learned judge: not that these are mistakes, but that he is, in by far the most of the cases, so wonderfully right beyond the proportion of any other judge." 5 Taunt. 194.

Reports which may have these qualities, from the learning of the judge and the bar, are surely worth preserving, and a judicious guide, whose instructions have spread widely among the junior members of the bar of England and America, advises the student strenuously to procure and study the Nisi Prius Reports of Moody and Robinson on account of the brevity and accuracy with which the decisions are given, and the useful notes subjoined to those cases, which are of superior interest and importance. Warren's Law Studies, 548.

In addition to all these commendations, when it is considered also that in very many instances the conduct of the cause is made to appear in these reports in its natural progress, and that this important feature is often shut out from the more solemn report, it would seem that the reasons for the cultivation of this species of learning are not inferior to those already stated, in favor of what may be termed the more legitimate report.

The cases in this volume have either enjoyed the direct sanction of the courts, or have been cited with approbation, or possess the authority which is derived from the acquiescence of counsel, or are sustained by careful notes, and as, in addition, they also, in every instance, record the learned views of counsel on each side, (now most unfortunately and unwisely too generally omitted in the more solemn report,) it is trusted that these peculiarities will make them instructive to the young, and suggestive to the more experienced advocate. One matter of objection, perhaps, still remains. I am aware that an impression has been made on many minds that the ancient arena of “nisi

prius" exists no longer, and that consequently its peculi arities and polemics are mere matters of antiquity, and at the present day, not profitable practically. It is very true that serious changes have taken place; that the imposing and easy task of obliterating venerated names and titles has been extensively pursued by modern reformers, and that superficial and unlearned persons are apt to imagine that, with the name, the substance has also perished. It has been remarked, too, and with much concern, to what an extent this error, this fancied facility of becoming a lawyer, which has its origin in our unfortunate constitution, fostered by an almost indiscriminate admission, derived from the same source, has crowded our courts of justice with uninstructed advocates, who have been thus cruelly deceived into positions painfully demonstrating the poverty of their resources. It is very true that the name which for ages has marked and denoted the field of forensic renown, must no longer be pronounced; that the logical science of "well pleading" is in disgrace; that the old common law "record," with its unerring accuracy, has perished; that, with it, most of those topics which, in former days, ministered to that accuracy and exercised the genius, acumen, and learning of the well instructed nisi prius lawyer, have given place to matters of puerile criticism, and verbal wrangling; that even the philosophy of evidence is contemned and disregarded: still, the restless heavings of the bench and bar indicate a strong anxiety to return and stand again "super antiquas vias." And the "Ladye Common Law," (as my Lord Coke was pleased to call her,) stiff and uneasy in the cast off livery of the Court of Chancery, is looking wistfully back

to her ancient wardrobe. The student, therefore, will do well to drink deep at the ancient fountains, and to regard, with a wise forecast, every stream, however humble, flowing from those sources.

The present work, in its first edition, was received with favor by the profession. A second edition being called for, the original annotations have been revised and brought down to the present time, and additional cases, with annotations, have been introduced, which the author trusts will not impair its value.